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Full text of "North Carolina Register v.3 no. 9 (8/1/1988)"

( K K - /CPKJ/ 1H3 U I h 3/AJk7 



WCCEIVEO 

AUG 3 1988 

Ilaw library 



The 
NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



GENERAL STATUTES 



ADMINISTRATIVE ORDER 



FINAL DECISION LETTER 




PROPOSED RULES 

Human Resources 

Board of Nursing 

Board of Podiatry Examiners 

FINAL RULES 
Revenue 



ISSUE DATE: AUGUST 1, 1988 
Volume 3 • Issue 9 • Pages 348-400 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 

The North Carolina Register is published bi-monthly 
and contains information relating to agency, executive, 
legislative and judicial actions required bv or affecting 
Chapter 150B of the General Statutes. All proposed, ad- 
ministrative rules and amendments filed under Chapter 
150B must be published in the Register. The Register 
will typically comprise approximately fifty pages per 
issue of legal text. 

State law requires that a copy of each issue be pro- 
vided free of charge to each county in the state and to 
various state officials and institutions. The North 
Carolina Register is available by yearly subscription at 
a cost of ninety-five dollars ($95.00) for 24 issues. 

Requests for subscriptions to the North Carolina 
Register should be directed to the Office of Ad- 
ministrative Hearings, P. O. Drawer 1 1666, Raleigh, N. 
C. 27604, Attn: Subscriptions. 

ADOPTION, AMENDMENT, AND REPEAL OF 
RULES 

An agency intending to adopt, amend, or repeal a rule 
must first publish notice of the proposed action in the 
North Carolina Register. The notice must include the 
time and place of the public hearing; a statement of how 
public comments may be submitted to the agency either 
at the hearing or otherwise; the text of the proposed 
rule or amendment; a reference to the Statutory 
Authority for the action and the proposed effective date. 

The Director of the Office of Administrative Hearings 
has authority to publish a summary, rather than the 
full text, of any amendment which is considered to be 
too lengthy. In such case, the full text of the rule con- 
taining the proposed amendment will be available for 
public inspection at the Rules Division of the Office of 
Administrative Hearings and at the office of the pro- 
mulgating agency. 

Unless a specific statute provides otherwise, at least 
30 days must elapse following publication of the pro- 
posal in the North Carolina Register before the agency 
may conduct the required public hearing and take ac- 
tion on the proposed adoption, amendment or repeal. 

When final action is taken, the promulgating agency 
must file any adopted or amended rule for approval by 
the Administrative Rules Review Commission. Upon ap- 
proval of ARRC, the adopted or amended rule must be 
filed with the Office of Administrative Hearings. If it 
differs substantially from the proposed form published 
as part of the public notice, upon request by the agen- 
cy, the adopted version will again be published in the 
North Carolina Register. 

A rule, or amended rule cannot become effective 
earlier than the first day of the second calendar month 
after the adoption is filed with the Office of Ad- 
ministrative Hearings for publication in the NCAC. 

Proposed action on rules may be withdrawn by the 
promulgating agency at any time before final action is 
taken by the agency. 

TEMPORARY RULES 

Under certain conditions of an emergency nature, 
some agencies may issue temporary rules. A temporary 
rule becomes effective when adopted and remains in 



effect for the period specified in the rule or 180 day^ 
whichever is less. An agency adopting a temporary i 
must begin normal rule-making procedures on the pe 1 
manent rule at the same time the temporary rule i| 
adopted. 

NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NCAC) i 
a compilation and index of the administrative rules o 
25 state agencies and 38 occupational licensing board; 
The NCAC comprises approximately 15,000 letter size 
single spaced pages of material of which approximate 
ly 35% is changed annually. Compilation and publica 
tion of the NCAC is mandated by G.S. 150B-63(b). 

The Code is divided into Titles and Chapters. Eac 
state agency is assigned a separate title which is fur 
ther broken down by chapters. Title 21 is designate! 
for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimuri 
cost of two dollars and 50 cents ($2.50) for 1 
pages or less, plus fifteen cents ($0.15) per eac 
additional page. 

(2) The full publication consists of 52 volume; 
totaling in excess of 15,000 pages. It is suj 
plemented monthly with replacement pages 
one year subscription to the full publication ii 
eluding supplements can be purchased fo 
seven hundred and fifty dollars ($750.00). h 
dividual volumes may also be purchased wi 
supplement service. Renewal subscriptions fo 
supplements to the initial publication availab 

Requests for pages of rules or volumes of the NCA( 
should be directed to the Office of Administrativ 
Hearings. 

NOTE 

The foregoing is a generalized statement of the pre 
cedures to be followed. For specific statutory language 
it is suggested that Articles 2 and 5 of Chapter 150B ~ 
the General Statutes be examined carefully. 

CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issu 
page number and date. 1:1 NCR 101-201, April 1, 198 

refers to Volume 1, Issue 1, pages 101 through 201 
the North Carolina Register issued on April 1, 1986 



North Carolina Register. Published bi-monthly by 
the Office of Administrative Hearings, P.O. 
Drawer 1 1666, Raleigh, North Carolina 27604, pur- 
suant to Chapter 150B of the General Statutes. 
Subscriptions ninety-five dollars ($95.00) per year. 
North Carolina Administrative Code. Published 
in looseleaf notebooks with supplement service by 
the Office of Administrative Hearings, P.O. 
Drawer 1 1666, Raleigh, North Carolina 27604, pur- 
suant to Chapter 150B of the General Satutes. 
Subscriptions seven hundred and fifty dollars 
($750.00). Individual volumes available. 






NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 
P. O. Drawer 11666 
Raleigh, NC 27604 

(919) 733 - 2678 



Robert A. Melott, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Mason, 

Assistant Director 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 
Latarsha Roberts, 

Records Clerk 



ISSUE CONTENTS 



I. GENERAL STATUTES 

Chapter 7A 348 

Chapter 143B 350 

Chapter 150B 352 

II. ADMINISTRATIVE ORDER 

Administrative Order 369 

III. FLNAL DECISION LETTER 

Voting Rights Act 370 



IV. PROPOSED RULES 
Human Resources 

Vocational Rehabilitation 

Services 371 

Licensing Boards 

Board of Nursing 376 

Board of Podiatry Examiners ....377 



V. FINAL RULES 
Revenue 

Sales and Use Taxes 386 



VI. CUMULATIVE fNDEX 398 



NORTH CAROLINA REGISTER 

Publication Deadlines and Schedules 

(March 1988 - March 1989) 



Issue 


L,ast Day 


Last Day 


F.arliest 


+ 


Date 


for 


for 


Date for 


Earliest 




Filing 


Electronic 


Public 


Effective 






Filing 


Hearing & 
Adoption by 
Agency 


Date 


******** 


******** 


******** 


++**+*++ 


******** 


08/01/88 


07/11/88 


07/18/88 


08/31/88 


12/01/88 


08/15/88 


07/26/88 


08/02/88 


09/14/88 


12/01/88 


09 01/88 


08/11/88 


08/18/88 


10/01/88 


01/01/89 


09/15/88 


08/26/88 


09/02/88 


10/15/88 


01/01/89 


10/03/88 


09/12/88 


09/19/88 


11/02/88 


02/01/89 


10/14/88 


09/26/88 


10/03/88 


11/13/88 


02/01/89 


11/01/88 


10/11/88 


10/18/88 


12/01/88 


03/01/89 


11/15/88 


10/26/88 


11/02/88 


12/15/88 


03/01/89 


12/01/88 


11/07/88 


11/15/88 


12/31/88 


04/01/89 


12/15/88 


11/23/88 


12/02/88 


01/14/89 


04/01/89 


01/02/89 


12/08/88 


12/15/88 


02/01/89 


05/01/89 


01/16/89 


12/27/88 


01/03/89 


02/15/89 


05/01/89 


02/01/89 


01/10/89 


01/17/89 


03/03/89 


06/01/89 


02/15/89 


01/26/89 


02/02/89 


03/17/89 


06/01/89 


03/01/89 


02/08/89 


02/15/89 


03/31/89 


07/01/89 


03/15/89 


02/21/89 


03/02/89 


04/14/89 


07/01/89 



* The "Earliest Effective Date" is computed assuming that the public hearing 
and adoption occur in the calendar month immediately following the "Issue 
Date", that the agency files the rule with The Administrative Rules Review 
Commission by the 20th of the same calendar month and that ARRC approves 
the rule at the next calendar month meeting. 



GENERAL ST A TUTES OF NORTH CAROLINA 



CHAPTER 7A, SUBCHAPTER XII, ARTICLE 60 
OFFICE OF ADMINISTRATIVE HEARINGS 

[The following excerpt contains the statutory provisions that govern the Office of Administrative 
Hearing as amended by Chapters 1 100 and 1111, Session Laws of 1987 (Regular Session, 1988). Note: 
These provisions may be subject to variable effective dates through October L^ 1988. Persons con- 
cerned should consult the Session Laws for specific information.) 



§ 7A-750. Creation; status; purpose. — 

There is created an Office of Administrative 
Hearings. The Office of Administrative Hearings 
is an independent, quasi-judicial agency under 
Article III, Sec. 11 of the Constitution and, in 
accordance with Article IV, Sec. 3 of the Consti- 
tution, has such judicial powers as may be rea- 
sonably necessary as an incident to the 
accomplishment of the purposes for which it is 
created. The Office of Administrative Hearings 
is established to provide a source of independent 
hearing officers to preside in administrative cases 
and thereby prevent the commingling of legisla- 
tive, executive, and judicial functions in the ad- 
ministrative process. It shall also maintain 
dockets and records of contested cases and shall 
codify and publish all administrative rules. 

§ 7A-751. Agency head; powers and duties. 
— The head of the Office of Administrative 
Hearings is the Chief Administrative Law Judge. 
He shall serve as Director and have the powers 
and duties conferred on him by this Chapter and 
the Constitution and laws of this State. His sal- 
ary shall be fixed by the General Assembly in the 
Current Operations Appropriations Act. In lieu 
of merit and other increment raises, the Chief 
Administrative Law Judge shall receive as lon- 
gevity an annual amount payable monthly at the 
rates provided in G.S. 7A-65 and based upon his 
years of State service. 

§ 7A-752. Chief Administrative Law Judge 
appointments; vacancy. -- The Chief Adminis- 
trative Law Judge of the Office of Administrative 
Hearings shall be appointed by the Chief Justice 
for a term of office of four years. The first Chief 
Administrative Law Judge shall be appointed as 
soon as practicable for a term to begin on the day 
of his appointment and to end on June 30, 1989. 
Successors to the first Chief Administrative Law 
Judge shall be appointed for a term to begin on 
July 1 of the year the preceding term ends and to 
end on June 30 four years later. A Chief Ad- 
ministrative Law Judge may continue to serve 
beyond his term until his successor is duly ap- 
pointed and sworn, but any holdover shall not 
affect the expiration date of the succeeding term. 

The Chief Administrative Law Judge shall des- 
ignate one administrative law judge as senior ad- 



ministrative law judge. The senior administrative 
law judge may perform the duties of Chief Ad- 
ministrative Law Judge if the Chief Administra- 
tive Law Judge is absent or unable to serve 
temporarily for any reason. 

§ 7A-753. Additional Administrative Law 

Judges; appointment; specialization. -- The 
Chief Administrative Law Judge shall appoint 
additional administrative law judges to serve in 
the Office of Administrative Hearings in such 
numbers as the General Assembly provides. No 
person shall be appointed or designated an ad- 
ministrative law judge except as provided in this 
Article. 

The Chief Administrative Law Judge may des- 
ignate certain administrative law judges as having 
the experience and expertise to preside at specific 
types of contested cases and assign only these 
designated administrative law judges to preside 
at those cases. 

§ 7A-754. Qualifications; standards of con- 
duct; removal. -- Only persons duly authorized 
to practice law in the General Court of Justice 
shall be eligible for appointment as the Director 
and chief administrative law judge or as an ad- 
ministrative law judge in the Office of Adminis- 
trative Hearings. Neither the chief administrative 
law judge nor any administrative law judge may 
engage in the private practice of law as defined in 
G.S. 84-2.1 while in office; violation of this pro- 
vision shall be grounds for removal. Each ad- 
ministrative law judge shall take the oaths 
required by Chapter 1 1 of the General Statutes. 
An administrative law judge may be removed 
from office by the Director of the Office of Ad- 
ministrative Hearings for just cause, as that term 
is used in G.S. 126-35. 

§ 7A-755. Expenses reimbursed. -- The 

Chief Administrative Law Judge of the Office of 
Administrative Hearings and all administrative 
law judges shall be reimbursed for travel and 
subsistence expenses at the rates allowed to State 
officers and employees by G.S. 138-6(a). 

§ 7A-756. Power to administer oaths and 
issue subpoenas. -- The chief administrative law 
judge and all administrative law judges in the 
Office of Administrative Hearings may, in con- 



NORTH CAROLINA REGISTER 



348 



GENERAL STATUTES OF NORTH CAROLINA 



ncction with any pending or potential contested 
case under Chapter 1 SOB: 

(1) Administer oaths and affirmations; 

(2) Sign and issue subpoenas in the name of 
the Office of Administrative Hearings re- 
quiring attendance and giving of testimony 
by witnesses and the production of books, 
papers, and other documentary evidence; 
and 

(3) Apply to the General Court of Justice, 
Superior Court Division, for any order nec- 
essary to enforce the powers conferred in 
this Article. 

§ 7A-757. Temporary administrative law 

judges; appointments; powers and standards; 
fees. -- When regularly appomted administrative 
law judges are unavailable, the Chief Adminis- 
trative Law Judge of the Office of Administrative 
Hearings may contract with qualified individuals 
to serve as administrative law judges for specific 
assignments. A temporary administrative law 
judge shall have the same powers and adhere to 
the same standards as a regular administrative 
law judge in the conduct of a hearing. A tem- 
porary administrative law judge shall not be 
considered a State employee by virtue of this as- 
signment, and shall be remunerated for his ser- 
vice at a rate not to exceed three hundred dollars 
($300.00) per day and shall be reimbursed for 
travel and subsistence expenses at the rate al- 
lowed to State officers and employees by G.S. 
138-6(a). The Chief Administrative Law Judge 
may also designate a full-time State employee to 
serve as a temporary administrative law judge 
with the consent of the employee and his super- 
visor; however, the employee is not entitled to 
any additional pay for this service. 

§ 7A-758. Availability of administrative law 
judge to exempt agencies. -- The Chief Admin- 
istrative Law Judge of the Office of Administra- 
tive Hearings may, upon request of the head of 
the agency, provide an administrative law judge 
to preside at hearings of public bodies not other- 
wise authorized or required by statute to utilize 
an administrative law judge from the Office of 
Administrative Hearings including, but not lim- 
ited to, State agencies exempt from the pro- 
visions of Chapter 150B, municipal corporations 
or other subdivisions of the State, and agencies 
of such subdivisions. 

§ 7A-759. Role as deferral agency. — (a) 

The Office of Administrative Hearings is desig- 
nated to serve as the State's deferral agency for 



cases deferred by the Equal Employment Op- 
portunity Commission to the Office of Adminis- 
trative Hearings as provided in Section 706 of the 
Civil Rights Act of 1964, 42 U.S.C. 2000e-5, or 
the Age Discrimination in Employment Act, 29 
U.S.C. 621 for charges filed by State or local 
government employees covered under Chapter 
126 of the General Statutes and shall have afJ of 
the powers and authority necessary to function 
as a deferral agency. 

(b) The Chief Administrative Law Judge is 
authorized and directed to contract with the 
Equal Employment Opportunity Commission 
for the Office of Administrative Hearings to serve 
as a deferral agency and to establish and maintain 
a Civil Rights Division in the Office of Adminis- 
trative Hearings to carry out the functions of a 
deferral agency. 

(c) In investigating charges an employee of the 
Civil Rights Division of the Office of Adminis- 
trative Hearings specifically designated by an or- 
der of the Chief Administrative Law Judge filed 
in the pending case may administer oaths and 
affirmations. 

(d) Any charge not resolved by informal 
methods of conference, conciliation or persua- 
sion shall be heard as a contested case as pro- 
vided in Article 3 of Chapter 150B of the General 
Statutes. 

(e) Notwithstanding G.S. 150B-34 and G.S. 
150B-36, an order entered by an administrative 
law judge after a contested case hearing on the 
merits of a deferred charge is a final agency deci- 
sion and is binding on the parties. The admin- 
istrative law judge may order whatever remedial 
action is appropriate to give full relief consistent 
with the requirements of federal statutes or regu- 
lations. 

(f) In addition to the authority vested in G.S. 
7A-756 and G.S. 150B-33, an administrative law 
judge may monitor compliance with any negoti- 
ated settlement, conciliation agreement of order 
entered in a deferred case. 

(g) The standards of confidentiality established 
by federal statute or regulation for discrimination 
charges shall apply to deferred cases investigated 
or heard by the Office of Administrative 
Hearings. 

(h) Nothing in this section shall be construed 
as limiting the authority or right of any federal 
agency to act under any federal statute or regu- 
lation. 



349 



NORTH CAROLINA REGISTER 



GENERAL ST A TUTES OF NORTH CAROLINA 



CHAPTER 143B, ARTICLE 1, PART 3 

ADMLNISTRATIVE RULES REVIEW COMMISSION 

[The following excerpt contains the statutory provisions that govern the Administrative Rules Review 
Commission as amended by Chapter 1111, Session Laws of 1987 (Regular Session, 1988). Note: 
These provisions may be subject to variable effective dates through October \± 1988, Persons con- 
cerned should consult the Session Law or the Administrative Rules Review Commission Staff for 
specific information.] 



§ 143B-30. Definitions. -As used in this Part, 
the following definitions apply: 

"Agency" means an agency subject to the pro- 
visions of Article 2 of Chapter 150B of the Gen- 
eral Statutes. 

"Commission" means the Administrative Rules 
Review Commission. 

"Rule" means a "rule", as defmed in G.S. 
150B-2(8a). 

§ 143B-30.1. Administrative Rules Review 
Commission created. —The Administrative 
Rules Review Commission is created. The 
Commission shall consist of eight members to 
be appointed by the General Assembly, four 
upon the recommendation of the President of the 
Senate, and four upon the recommendation of 
the Speaker of the House of Representatives. 
These appointments shall be made in accordance 
with G.S. 120-121, and vacancies in these ap- 
pointments shall be filled in accordance with G.S. 
120-122. All appointees shall serve two-year 
terms. Any appointment to fill a vacancy on the 
Commission created by the resignation, dis- 
missal, ineligibility, death, or disability of any 
member shall be for the balance of the unexpired 
term. The chairman shall be elected by the 
Commission, and he shall designate the times 
and places at which the Commission shall meet. 
The Commission shall meet at least once a 
month. A quorum of the Commission shall 
consist of five members of the Commission. The 
Commission is an independent agency under 
Article III, Section 11 of the Constitution. 

Members of the Commission who are not offi- 
cers or employees of the State shall receive com- 
pensation of two hundred dollars ($200.00) for 
each day or part of a day of service plus re- 
imbursement for travel and subsistence expenses 
at the rates specified in G.S. 138.5. Members of 
the Commission who are officers or employees 
of the State shall receive reimbursement for travel 
and subsistence at the rate set out in G.S. 138-6. 

Any other provision of the General Statutes 
notwithstanding, the appointment of employees 
of the Commission shall be made by the Com- 
mission. Nothing in this Article shall be con- 



strued to exempt employees of the Commission 
from the State Personnel Act. 

The Commission shall prescribe procedures and 
forms to be used in submitting rules to the 
Commission for review. 

§ 143B-30.2. Review of rules. - (a) Rules 
adopted by an agency on or after September 1, 
1986, shall be submitted to the Administrative 
Rules Review Commission, which shall review 
the rule to determine whether it: 

(1) Is within the authority delegated to the 
agency by the General Assembly; 

(2) Is clear and unambiguous; 

(3) Is reasonably necessary to enable the 
administrative agency to perform a function 
assigned to it by statute or to enable or fa- 
cilitate the implementation of a program or 
policy in aid of which the rule was adopted. 

Any rule filed by the 20th of a month shall 
be reviewed by the Commission by the last 
day of the next calendar month. Any rule 
filed after the 20th of a month shall be re- 
viewed by the Commission by the last day 
of the second subsequent calendar month. 
The Commission may extend the time for 
review of a rule by a period of up to 70 days 
to obtain additional information on the rule. 
The Commission shall file notice of the ex- 
tension of time for review of a rule with the 
agency and the Director of the Office of 
Administrative Hearings. A rule may not 
be presented for filing with the Director of 
the Office of Administrative Hearings under 
G.S. 150B-59 unless the rule has been re- 
viewed by the Commission as provided in 
this section. 

(b) If the Commission reviews a rule and de- 
termines that it is within the authority delegated 
to the agency, is clear and unambiguous, and is 
reasonably necessary, the Commission shall note 
its approval, notify the agency, and file the rule 
with the Director of the Office of Administrative 
Hearings under G.S. 150B-59, and the rule shall 
become effective as provided in that section. 

(c) If the Commission finds that an agency did 
not act within the authority delegated to it in 
promulgating a rule or a part of a rule, or that a 



NORTH CAROLINA REGISTER 



350 



GENERAL ST A TUTES OF NORTH CAROLINA 



rule is not clear and unambiguous, or that a rule 
is unnecessary, the Commission shall object and 
delay the filing of the rule or part of the rule un- 
der G.S. 150B-59 for a period not to exceed 90 
days. The Commission shall send to the agency, 
the Governor, the President of the Senate, the 
Speaker of the House of Representatives, and the 
Director of the Office of Administrative 
Hearings, a written report of the objection and 
delay of the rule or its part and the reasons for 
the delay. An agency may not present a rule or 
part of a rule that has been delayed to the Di- 
rector of the Office of Administrative Hearings 
for filing under G.S. 150B-59, and a rule or its 
part that is delayed is not effective, as defined in 
G.S. 150B-2(2a). 

(d) Within 30 days after receipt of the Com- 
mission's written report as authorized by (c), the 
agency shall either (1) revise the rule to remove 
the cause of the objections of the Commission 
and return the revised rule to the Commission 
or (2) return the rule to the Commission with- 
out change with the Commission's objections 
attached; provided, however, that in the case of 
a board, committee, council, or commission the 
response is due within 30 days after receipt of the 
Commission's written report or within 10 days 
following the next regularly scheduled meeting 
of the board, committee, council, or commission, 
whichever time period is greater. The Commis- 
sion shall determine whether a revision removes 
its objections to the rule. 

(e) If the Commission determines that a re- 
vision of a rule has removed the Commission's 
objections, the Commission shall note its ap- 
proval and return the rule to the agency. The 
agency may then file the rule with the Director 
of the Office of Administrative Hearings under 
G.S. 150B-59, and the rule shall become effective 
as provided in that section. 

(f) Regardless of whether the agency returns the 
rule to the Commission without change instead 
of revising the rule to remove the Commission's 
objections or whether the Commission deter- 
mines that a revision of a rule has not removed 
its objections, the Commission shall note its re- 
view of and objection to the rule once 90 days 
have passed since the Commission objected and 
delayed the filing of the rule or part of the rule 
pursuant to G.S. 143B-30.2(c) and shall return 
the rule to the agency. The agency may then file 
the rule with the Director of the Office of Ad- 
ministrative Hearings under G.S. 150B-59, and 
the rule shall become effective as provided in that 



section. If the agency did not remove the Com- 
mission's objections to the rule or part of the 
rule, the Commission may send to the President 
of the Senate and the Speaker of the House of 
Representatives a written report of its objections 
to the rule. Thereafter, if the General Assembly 
enacts legislation disapproving the rule, the rule 
shall no longer be effective. 

The Legislative Services Officer shall send a 
copy of any law disapproving a rule to the agency 
and the Director of the Office of Administrative 
Hearings as soon as a copy is available. 

(g) While the filing of a rule or its part is de- 
layed, the agency that promulgated it may not 
adopt another rule, including a temporary rule, 
that has substantially identical provisions to 
those for which the Commission delayed the fil- 
ing of the original rule or part of a rule. 

(h) The filing of an amendment to a rule places 
the entire rule before the Commission for its re- 
view. 

(i) Rules adopted in accordance with the pro- 
cedure in G.S. 150B-13 shall be reviewed by the 
Commission and are subject to objection as 
provided in (c). 

The Commission shall review the reasons given 
for the adoption of a temporary rule and may 
object to the rule due to the agency's failure to 
make the finding required by G.S. 1 SOB- 13. 

§ 143B-30.3. Hearings. — (a) Notwithstanding 
G.S. 143B-30.2(a), at any time before the time 
for review set out in that subsection expires or 
upon the written request of any agency, the 
Commission may call a public hearing on any 
rule. Within 60 days after the public hearing, the 
Commission may find that the agency did not act 
within the authority delegated to it in 
promulgating the rule, or that the rule is not clear 
and unambiguous, or that the rule is unnecessary, 
and object to and delay the rule in accordance 
with G.S. 143B-30.2. 

(b) At least 15 days before the public hearing, 
the Commission shall give notice of the hearing 
to the rulemaking agency, to any person who re- 
quests a copy of the notice, and to any person 
who may be affected by the rule in the opinion 
of the chairman of the Commission. 

§ 143B-30.4. Evidence. --Evidence of the 
Commission's failure to object to and delay the 
tiling of a rule or its part shall be inadmissible in 
all civil or criminal trials or other proceedings 
before courts, administrative agencies, or other 
tribunals. 



351 



NORTH CAROLINA REGISTER 



GENERAL ST A TUTES OF NOR TH CAROLINA 



CHAPTER 150B 
THE ADMINISTRATIVE PROCEDURES ACT 



[The following excerpt contains the statutory provisions of the Administrative Procedures Act as 
amended by Chapters 1100 and 1111, Session Laws of 1987 (Regular Session, 1988). Note: These 
provisions may be subject to variable effective dates through October 1^ 1988. Persons concerned 
should consult the Session Laws for specific information.] 



Article 1. 
General Provisions. 
§ 150B-1. Policy and scope. — (a) The 
policy of the State is that the three powers of 
government, legislative, executive, and judicial, 
are, and should remain, separate. The intent of 
this Chapter is to prevent the commingling of 
those powers in any administrative agency and 
to ensure that the functions of rule making, in- 
vestigation, advocacy, and adjudication are not 
all performed by the same person in -the admin- 
istrative process. 

(b) The purpose of this Chapter is to establish 
as nearly as possible a uniform system of admin- 
istrative rule making and adjudicatory procedures 
for State agencies. 

(c) This Chapter shall apply to every agency, 
as defined in G.S. 150B-2(1), except to the extent 
and in the particulars that any statute, including 
subsection (d) of this section, makes specific 
provisions to the contrary. 

(d) The following are specifically exempted 
from the provisions of this Chapter: the Ad- 
ministrative Rules Review Commission, the 
Employment Security Commission, the Indus- 
trial Commission, the Occupational Safety and 
Health Review Board in all actions that do not 
involve agricultural employers, and the Utilities 
Commission. 

The North Carolina National Guard is exempt 
from the provisions of this Chapter in exercising 
its court-martial jurisdiction. 

The Department of Human Resources is ex- 
empt from this Chapter in exercising its authority 
over the Camp Butner reservation granted in 
Article 6 of Chapter 122C of the General Stat- 
utes. 

The Department of Correction is exempt from 
the provisions of this Chapter, except for Article 
5 of this Chapter and G.S. 150B-13 which shall 
apply. 

Articles 2 and 3 of this Chapter shall not apply 
to the Department of Revenue. Except as pro- 
vided in Chapter 136 of the General Statutes, 
Articles 2 and 3 of this Chapter do not apply to 
the Department of Transportation. 



Article 4 of this Chapter, governing judicial re- 
view of final administrative decisions, shall apply 
to The University of North Carolina and its 
constituent or affiliated boards, agencies, and in- 
stitutions, but The University of North Carolina 
and its constituent or affiliated boards, agencies, 
and institutions are specifically exempted from 
the remaining provisions of this Chapter. Article 
4 of this Chapter shall not apply to the State 
Banking Commission, the Commissioner of 
Banks, the Savings and Loan Division of the 
Department of Commerce, and the Credit Union 
Division of the Department of Commerce. 
Article 3 of this Chapter shall not apply to 
agencies governed by the provisions of Article 3A 
of this Chapter, as set out in G.S. 150B-38(a). 

Articles 3 and 3A of this Chapter shall not apply 
to the Governor's Waste Management Board in 
administering the provisions of G.S. 104E-6.2. 
Article 2 of this Chapter shall not apply to the 
North Carolina Low-Level Radioactive Waste 
Management Authority in administering the 
provisions of G.S. 104G-10 and G.S. 104G-11. 
Articles 3 and 3A of this Chapter shall not apply 
to the North Carolina Low- Level Radioactive 
Waste Management Authority in administering 
the provisions of G.S. 104G-9, 104G-10, and 
104G-11. 

§ 150B-2. Definitions. — As used in this 
Chapter, 

(01) "Administrative law judge" means a per- 
son appointed under G.S. 7A-752, 
7A-753, or 7A-757. 
(1) 'Agency" means any agency, institution, 
board, commission, bureau, department, 
division, council, member of the Council 
of State, or officer of the State government 
of the State of North Carolina but does 
not include any agency in the legislative 
or judicial branch of the State govern- 
ment; and does not include counties, 
cities, towns, villages, other municipal 
corporations or political subdivisions of 
the State or any agencies of such subd- 
ivisions, or local boards of education, 
other local public districts, units or bodies 



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of any kind, or private corporations cre- 
ated by act of the General Assembly. 

(2) "Contested case" means an administrative 
proceeding pursuant to this Chapter to 
resolve a dispute between an agency and 
another person that involves the person's 
rights, duties, or privileges, including li- 
censing or the levy of a monetary penalty. 
"Contested case" does not include 
rulemaking, declaratory rulings, or the 
award or denial of a scholarship or grant. 

(2a) "Effective" means that a valid rule has 
been hied as required by G.S. 150B-59 
and, if applicable, that the time specified 
in that section has elapsed. A rule that is 
effective is enforceable to the extent per- 
mitted by law. 

(2b) "Hearing officer" means a person or 
group of persons designated by an agency 
that is subject to Article 3A of this Chap- 
ter to preside in a contested case hearing 
conducted under that Article. 

(3) "License" means any certificate, permit 
or other evidence, by whatever name 
called, of a right or privilege to engage in 
any activity, except licenses issued under 
Chapter 20 and Subchapter I of Chapter 
105 of the General Statutes and occupa- 
tional licenses. 

(4) "Licensing" means any administrative 
action issuing, failing to issue, suspending, 
or revoking a license or occupational li- 
cense. "Licensing" does not include con- 
troversies over whether an examination 
was fair or whether the applicant passed 
the examination. 

(4a) "Occupational license" means any certif- 
icate, permit, or other evidence, by what- 
ever name called, of a right or privilege to 
engage in a profession, occupation, or 
field of endeavor that is issued by an oc- 
cupational licensing agency. 

(4b) "Occupational licensing agency" means 
any board, commission, committee or 
other agency of the State of North 
Carolina which is established for the pri- 
mary purpose of regulating the entry of 
persons into, and/or the conduct of per- 
sons within a particular profession, occu- 
pation or field of endeavor, and which is 
authorized to issue and revoke licenses. 
"Occupational licensing agency" does not 
include State agencies or departments 
which may as only a part of their regular 
function issue permits or licenses. 

(5) "Party" means any person or agency 
named or admitted as a party or properly 
seeking as of right to be admitted as a 



party and includes the agency as appro- 
priate. This subdivision does not permit 
an agency that makes a final decision, or 
an officer or employee of the agency, to 
petition for initial judicial review of that 
decision. 

(6) "Person aggrieved" means any person or 
group of persons of common interest di- 
rectly or indirectly affected substantially in 
his or its person, property, or employment 
by an administrative decision. 

(7) "Person" means any natural person, part- 
nership, corporation, body politic and any 
unincorporated association, organization, 
or society which may sue or be sued under 
a common name. 

(8) "Residence" means domicile or principal 
place of business. 

(8a) "Rule" means any agency regulation, 
standard or statement of general applica- 
bility that implements or interprets laws 
enacted by the General Assembly or 
Congress or regulations promulgated by a 
federal agency or describes the procedure 
or practice requirements of any agency 
not inconsistent with laws enacted by the 
General Assembly. The term includes the 
amendment or repeal of a prior rule. The 
term does not include the following: 

a. Statements concerning only the internal 

■ management of an agency or group of 
agencies within the same principal office 
or department enumerated in G.S. 143-1 1 
or 143B-6, including policies and proce- 
dures manuals, if such a statement does 
not directly or substantially affect the 
procedural or substantive rights or duties 
of persons not employed by the agency 
or group of agencies. 

b. Budgets and budget policies and proce- 
dures issued by the Director of the 
Budget, by the head of a department, as 
defined by G.S. 143A-2 or G.S. 143B-3, 
by an occupational licensing board, as 
defined by G.S. 93B-1, or by the State 
Board of Elections. 

c. Nonbinding interpretive statements 
within the delegated authority of the 
agency that merely define, interpret or ex- 
plain the meaning of a statute or other 
provision of law or precedent. 

d. A form, the contents or substantive re- 
quirements of which are prescribed by rule 
or statute or the instructions for the exe- 
cution or use of the form. 

e. Statements of agency policy made in the 
context of another proceeding, including: 



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1. Declaratory rulings under G.S. 
150B-17; 

2. Orders establishing or fixing rates or 
tariffs. 

f. Statements of agency policy, provided 
that the agency policy is not inconsistent 
with any law enacted by the General As- 
sembly, communicated to the public by 
use of signs or symbols, concerning: 

1 . The use or creation of public roads or 
bridges; 

2. The boundaries of public facilities and 
times when public facilities are open to 
the public; or 

3. Safety in use of public facilities. 

g. Statements that set forth criteria or 
guidelines to be used by the staff of an 
agency in performing audits, investi- 
gations, or inspections; in settling financial 
disputes or negotiating financial arrange- 
ments; or in the defense, prosecution, or 
settlement of cases; 

h. Scientific, architectural, or engineering 
standards, forms, or procedures. 
(8b) "Substantial evidence" means relevant 
evidence a reasonable mind might accept 
as adequate to support a conclusion. 
(9) "Valid" means that the rule has been 
adopted pursuant to the procedure re- 
quired by law. A valid rule is 
unenforceable until it becomes effective. 
§ 150B-3. Special provisions on licensing. 
-- (a) When an applicant or a licensee makes a 
timely and sufficient application for issuance or 
renewal of a license or occupational license, in- 
cluding the payment of any required license fee, 
the existing license or occupational license does 
not expire until a decision on the application is 
finally made by the agency, and if the application 
is denied or the terms of the new license or oc- 
cupational license are limited, until the last day 
for applying for judicial review of the agency or- 
der. This subsection does not affect agency 
action summarily suspending a license or occu- 
pational license under subsections (b) and (c) of 
this section. 

(b) Before the commencement of proceedings 
for the suspension, revocation, annulment, with- 
drawal, recall, cancellation, or amendment of any 
license other than an occupational license, the 
agency shall give notice to the licensee, pursuant 
to the provisions of G.S. 150B-23. Before the 
commencement of such proceedings involving an 
occupational license, the agency shall give notice 
pursuant to the provisions of G.S. 150B-38. In 
either case, the licensee shall be given an oppor- 
tunity to show compliance with all lawful re- 



quirements for retention of the license or 
occupational license. 

(c) If the agency finds that the public health, 
safety, or welfare requires emergency action and 
incorporates this finding in its order, summary 
suspension of a license or occupational license 
may be ordered effective on the date specified in 
the order or on service of the certified copy of the 
order at the last known address of the licensee, 
whichever is later, and effective during the pro- 
ceedings. The proceedings shall be promptly 
commenced and determined. 

Nothing in this subsection shall be construed 

as amending or repealing any special statutes, in 

effect prior to February 1, 1976, which provide 

for the summary suspension of a license. 

Article 2. 

Rule Making. 

§ 150B-9. Minimum procedural require- 

ments; limitations on rule-making authority; 
criminal sanctions authorized. — (a) It is the 
intent of this Article to establish basic minimum 
procedural requirements for the adoption, 
amendment, or repeal of administrative rules. 
Except for temporary rules which are provided 
for in G.S. 150B-13, the provisions of this Article 
are applicable to the exercise of any rule-making 
authority conferred by any statute, but nothing 
in this Article repeals or diminishes additional 
requirements imposed by law or any summary 
power granted by law to the State or any State 
agency. No rule hereafter adopted is valid unless 
adopted in substantial compliance with this Ar- 
ticle. 

(b) Each agency shall adopt, amend, suspend 
or repeal its rules in accordance with the proce- 
dures specified in this Article and pursuant to 
authority delegated by law and in full compliance 
with its duties and obligations. No agency may 
adopt any rule that implements or interprets any 
statute or other legislative enactment unless the 
power, duty, or authority to carry out the pro- 
visions of the statute or enactment is specifically 
conferred on the agency in the enactment, nor 
may any agency make any rule enlarging the 
scope of any trade or profession subject to li- 
censing. 

(c) The power to declare what shall constitute 
a crime and how it shall be punished and the 
power to establish standards for public conduct 
are vested exclusively in the General Assembly. 
No agency may adopt any rule imposing a crim- 
inal penalty for any act or failure to act, including 
the violation of any rule, unless the General As- 
sembly authorizes a criminal sanction and speci- 
fies a criminal penalty for violation of the rule. 

(d) No agency may adopt as a rule the verbatim 
text of any federal or North Carolina statute or 



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GENERAL STATUTES OF NORTH CAROLINA 



any federal regulation, but an agency may adopt 
all or any part of such text by reference under 
G.S. 150B-14. 

§ 150B-10. Statements of organization and 
means of access to be published, -- To assist 
interested persons dealing with it, each agency 
shall, in a manner prescribed by the Director of 
the Office of Administrative Hearings, prepare a 
description of its organization, stating the process 
whereby the public may obtain information or 
make submissions or requests. The Director of 
the Office of Administrative Hearings shall pub- 
lish these descriptions annually. 

§ 150B-11. Special requirements. -- In ad- 
dition to other rule-making requirements im- 
posed by law, each agency shall: 

( 1 ) Adopt rules setting forth the nature and 
requirements of all formal and informal 
procedures available, including a listing of 
all forms that are required by the agency. 
Procedures concerning only internal man- 
agement which do not directly affect the 
rights of or procedures available to the 
public shall not be adopted as rules. 

(2) Make available for public inspection all 
rules and all other written statements of 
policy or interpretations formulated, 
adopted, or used by the agency in the 
discharge of its functions, except those 
used only for internal management of the 
agency. 

(3) Submit to the Director of the Budget a 
summary of any proposed rule requiring 
the expenditure or distribution of State 
funds and obtain approval of such ex- 
penditure or distribution of State funds 
prior to publishing the notice of public 
hearing required by G.S. 1 50B- 12(2). For 
purposes of this subdivision the term 
"State funds" shall have the same mean- 
ing as is set out in G.S. 143-1 and shall 
also apply to the funds of all occupational 
licensing boards included under G.S. 
150B-1. The agency shall include a fiscal 
note with any proposed rule, other than a 
temporary rule, so submitted. The fiscal 
note shall state what effect, if any, the 
proposed rule will have on the revenues, 
expenditures, or fiscal liability of the State 
or its agencies or subdivisions. The fiscal 
note shall include an explanation of how 
such effect, if any, was computed. 

(4) Submit a fiscal note in accordance with 
G.S. 120-30.48 for a proposed rule that 
affects the expenditures or revenues of a 
unit of local government. The fiscal note 
shall be submitted no later than the date 
when a notice of public hearing on the 



proposed rule is published in the North 
Carolina Register. The notice shall state 
that a fiscal note has been prepared for the 
proposed rule and may be obtained from 
the agency. An erroneous fiscal note 
prepared in good faith does not affect the 
validity of a rule. 
§ 150B-12. Procedure for adoption of rules. 
-- (a) Before the adoption, amendment or repeal 
of a rule, an agency shall give notice of a .public 
hearing and offer any person an opportunity to 
present data, opinions, and arguments. The no- 
tice shall be given within the time prescribed by 
any applicable statute, or if none then at least 30 
days before the public hearing and before the 
adoption, amendment, or repeal of the rule. The 
notice shall include: 

(1) A reference to the statutory authority un- 
der which the action is proposed; 

(2) The time and place of the public hearing 
and a statement of the manner in which 
data, opinions, and arguments may be 
submitted to the agency either at the 
hearing or at other times by any person; 
and 

(3) The text of the proposed rule, or amend- 
ment in the form required by G.S. 
150B-63(d2) and the proposed effective 
date of the rule or amendment. 

(b) Repeakd. 

(c) The agency shall publish the notice m the 
North Carolina Register and as prescribed in any 
applicable statute. 

The agency may also publish the notice or a 
synopsis of the notice in other ways selected by 
the agency to give notice to persons likely to be 
affected by the proposed rule. Methods that may 
be employed by the agency, depending upon the 
circumstances, include publication of the notice 
in one or more newspapers of general circulation 
or, when appropriate, in trade, industry, govern- 
mental or professional publications. 

(d) The public hearing shall not be conducted 
as a contested case unless a specific statute re- 
quires that the proposed rule be adopted by 
adjudicatory procedures. 

(e) The proposed rule shall not be changed or 
modified after the notice required by this section 
is published and before the rule-making hearing. 
The agency shall consider fully all written and 
oral submissions respecting the proposed rule. 
Upon adoption of a rule, the agency, if requested 
to do so by an interested person either prior to 
adoption o r within 30 days thereafter, shall issue 
a concise statement of the principal reasons for 
and against its adoption, incorporating therein its 
reasons for overruling the consideration urged 
against its adoption. The record in every rule- 



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making proceeding under this Article shall re- 
main open at least 30 days either before or after 
the hearing for the purposes of receiving written 
comments, and any such comments shall be in- 
cluded in the hearing records. All comments re- 
ceived, as well as any statement of reasons issued 
to an interested person under this section, shall 
be included in the rule-making record. 

(f) No rule-making hearing is required for the 
adoption, amendment, or repeal of a rule which 
solely describes forms or instructions used by the 
agency. 

(g) No rule-making hearing is required if the 
Director of the Office of Administrative Hearings 
determines that the amendment to a rule does 
not change the substance of the rule and that the 
amendment is: 

(1) A relettering or renumbering instruction; 
or, 

(2) The substitution of one name for another 
when an organization or position is re- 
named; or, 

(3) The correction of a citation to rules or 
laws which has become inaccurate since 
the rule was adopted because of repealing 
or renumbering of the rule or law cited; 
or 

(4) The correction of a similar formal defect; 
or 

(5) A change in information that is readily 
available to the public such as addresses 
and telephone numbers. 

(h) No rule-making hearing is required to re- 
peal a rule if the repeal of the rule is specifically 
provided for by the Constitution of the United 
States, the Constitution of North Carolina, any 
federal or North Carolina statute, any federal 
regulation, or a court order. No rule-making 
hearing is required to amend or repeal a rule to 
comply with G.S. 143B-30.2 in accordance with 
G.S. 150B-59(c). 

§ 150B-13. Temporary rules, --(a) Except 
as provided in subsection (b) of this section, if 
an agency which is not exempted from the notice 
and hearing requirements of this Article by G.S. 
150B-1 determines in writing that: 

(1) Adherence to the notice and hearing re- 
quirements of this Article would be con- 
trary to the public interest; and that 

(2) The immediate adoption, amendment, or 
repeal of a rule is necessitated by and re- 
lated to: 

a. A serious and unforseeable threat to 
public health, safety, or welfare; 

b. The effective date of a recent act of the 
General Assembly or the United States 
Congress; 



c. A recent change in federal or state budg- 
etary policy; 

d. A federal regulation; or 

e. A court order, 

the agency may adopt, amend, or repeal the rule 
without prior notice or hearing or upon any ab- 
breviated notice or hearing the agency finds 
practicable. The agency must accompany its 
rules filing with the Director of the Office of Ad- 
ministrative Hearings and the Governor with the 
agency's written certification of the finding of 
need for the temporary rule, together with the 
reasons for that finding and a copy of the notice 
of hearing on the proposed permanent rule. 

(al) The written certification of the finding 
of need for the temporary rule shall be signed by: 

(1) The member of the Council of State in the 
case of the Departments of Justice, Insur- 
ance, Public Education, Labor, Agricul- 
ture, Treasurer, State Auditor, or 
Secretary of State. 

(2) The chairman of the board in the case of 
an occupational licensing board or the 
Director of the Office of Administrative 
Hearings in the case of that agency. 

(3) The Governor in the case of all other 
agencies. 

(b) If the Department of Crime Control and 
Public Safety, Transportation, Revenue, or Cor- 
rection determines in writing that the immediate 
adoption, amendment, or repeal of a rule is ne- 
cessitated by: 

(1) The public health, safety, or welfare; 

(2) The effective date of a recent act of the 
General Assembly or the United States 
Congress; 

(3) A federal regulation; or 

(4) A court order, 

the agency may adopt, amend, or repeal the rule. 
The agency must accompany its rule filing with 
the Director of the Office of Administrative 
Hearings and the Governor with the agency's 
written certification of the finding of need for the 
temporary rule signed by the Governor together 
with the reasons for that finding. In the case of 
the Department of Correction, in addition to the 
reasons set forth in subdivisions (1) through (4) 
of this subsection, the Department may file a 
temporary rule when necessary for the manage- 
ment and control of persons under the custody 
or supervision of the Department in extraor- 
dinary circumstances as certified by the Secretary. 
The Department shall file any temporary rule 
within two working days of its adoption by the 
Secretary under G.S. 148-11. 

(c) Rules filed under subsections (a) and (b) 
of this section shall be effective for a period of 
not longer than 180 days and are subject to re- 



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GENERAL STATUTES OF NORTH CAROLINA 



(21 



(3) 



view as provided in G.S. 143B-30.2(i). An 
agency adopting a temporary rule shall begin 
normal rule-making procedures on the perma- 
nent rule under this Article at the same time the 
temporary rule is adopted. 

§ 15013-14. Adoption by reference. -- (a) 
An agency may adopt by reference in its rules, 
without publishing the adopted matter in full: 
(1) All or any part of a code, standard, or 
regulation which has been adopted by any 
other agency of this State or by any 
agency of the United States or by a gen- 
erally recognized organization or associ- 
ation; 

Any plan or material which is adopted to 
meet the requirements of any agency of 
the United States and approved by that 
agency; 

.Any plan, material, manual, guide or other 
document establishing job application or 
employment practices or procedures of 
any State agency other than the State 
Personnel Commission. The State Per- 
sonnel Commission, however, shall in- 
corporate by reference in its rules job 
classification standards, including but not 
limited to those relating to qualifications 
and salary levels; or 

The he-arings division rules promulgated 
by the Office of Administrative Hearings, 
adopting matter by reference, the agency 
specify in the rule and in the Register 
whether such adoption is in accordance with the 
provisions of subsection (b) or (c) of this section. 
The agency can change this election only by a 
subsequent rulemaking proceeding. 

(b) If an agency adopts matter by reference in 
accordance with this subsection, such reference 
shall not cover any later amendments and edi- 
tions of the adopted matter, but if the agency 
wishes to incorporate them in its rule it shall 
amend the rule or promulgate a new rule. 

(c) If any agency adopts matter by reference in 
accordance with this subsection, such reference 
shall automatically include any later amendments 
and editions of the adopted matter. 

(d) An agency may cross-reference its own rules 
in the North Carolina Administrative Code 
without violating the provisions of (a)(1) of this 
section. 

§ 15013-15. Continuation of rules. -- When 
a law authorizing or directing an agency to 
promulgate rules is repealed, and (i) substantially 
the same rule-making power or duty is vested in 
the same or a successor agency by a new pro- 
vision of law, or (ii) the function of the agency 
to which the rules are related is transferred to 
another agency by law or executive order, the 



(4) 

In 

shall 



existing rules of the original agency shall continue 
in effect until amended or repealed, and the 
agency or successor agency may repeal any rule 
relating to the transferred duty or function. 
When a law creating an agency or authorizing or 
directing it to promulgate rules is repealed or the 
agency is abolished and (i) substantially the same 
rule-making power or duty is not vested in the 
same or a successor agency by a new provision 
of law and (ii) the function of the agency to 
which the rules are related is not transferred to 
another agency, the existing applicable rules of 
the original agency are automatically repealed as 
of the effective date of the law repealing the 
agency's rule-making power or abolishing the 
agency. 

§ 150B-16. Petition for adoption of rules. 
-- Any person may petition an agency to 
promulgate, amend, or repeal a rule, and may 
accompany his petition with such data, views, 
and arguments as he thinks pertinent. Each 
agency shall prescribe by rule the form for pe- 
titions and the procedure for their submission, 
consideration, and disposition. Within 30 days 
after submission of a petition, the agency shall 
either deny the petition in writing, stating its 
reasons for the denial, or initiate rule-making 
proceedings in accordance with G.S. 150B-12 
and G.S. 150B-13; provided, however, commis- 
sions and boards shall act on a petition at their 
next regularly scheduled meeting, but in any case 
no later than 120 days after submission of a pe- 
tition. Denial of the petition to initiate rule 
making under this section shall be considered a 
final agency decision for purposes of judicial re- 
view. 

§ 150B-17. Declaratory rulings. — On re- 
quest of a person aggrieved, an agency shall issue 
a declaratory ruling as to the validity of a rule or 
as to the applicability to a given state of facts of 
a statute administered by the agency or of a rule 
or order of the agency, except when the agency 
for good cause finds issuance of a ruling undesir- 
able. The agency shall prescribe in its rules the 
circumstances in which rulings shall or shall not 
be issued. A declaratory ruling is binding on the 
agency and the person requesting it unless it is 
altered or set aside by the court. An agency may 
not retroactively change a declaratory ruling, but 
nothing in this section prevents an agency from 
prospectively changing a declaratory ruling. A 
declaratory ruling is subject to judicial review in 
the same manner as an order in a contested case. 
Failure of ihe agency to issue a declarator)' ruling 
on the merits within 60 days of the request for 
such ruling shall constitute a denial of the request 
as well as a denial of the merits of the request and 
shall be subject to judicial review. 



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Article 3. 

Administrative Hearings. 

150B-22. Settlement; contested case. 



is the policy of this State that any dispute be- 
tween an agency and another person that in- 
volves the person's rights, duties, or privileges, 
including licensing or the levy of a monetary 
penalty, should be settled through informal pro- 
cedures. In trying to reach a settlement through 
informal procedures, the agency may not conduct 
a proceeding at which sworn testimony is taken 
and witnesses may be cross-examined. 
Notwithstanding any other provision of law, if 
the agency and the other person do not agree to 
a resolution of the dispute through informal 
procedures, either the agency or the person may 
commence an administrative proceeding to de- 
termine the person's rights, duties, or privileges, 
at which time the dispute becomes a "contested 
case." 

§ 150B-23. Commencement ; assignment of 
administrative law judge; hearing required; no- 
tice; intervention. -- (a) A contested case shall 
be commenced by filing a petition with the Office 
of Administrative Hearings and, except as pro- 
vided in Article 3A of this Chapter, shall be 
conducted by that Office. The party who files 
the petition shall also serve a copy of the petition 
on all other parties and shall tile a certificate of 
service together with the petition. Any petition ' 
filed by a party other than an agency shall be 
verified or supported by affidavit and shall state 
facts tending to establish that the agency named 
as the respondent has deprived the petitioner of 
property, has ordered the petitioner to pay a fine 
or civil penalty, or has otherwise substantially 
prejudiced the petitioner's rights and that the 
agency: 

(1) Exceeded its authority or jurisdiction; 

(2) Acted en'oneously; 

(3) Failed to use proper procedure; 

(4) Acted arbitrarily or capriciously; or 

(5) Failed to act as required by law or rule. 
The parties in a contested case shall be given an 
opportunity for a hearing without undue delay. 
Any person aggrieved may commence a con- 
tested case hereunder. 

A local government employee, applicant for 
employment, or former employee to whom 
Chapter 126 of the General Statutes applies may 
commence a contested case under this Article in 
the same manner as any other petitioner. The 
case shall be conducted in the Office of Admin- 
istrative Hearings in the same manner as other 
contested cases under this Article, except that the 
decision of the State Personnel Commission shall 
be advisory only and not binding on the local 
appointing authority, unless (1) the employee, 



applicant, or former employee has been subjected 
to discrimination prohibited by Article 6 of 
Chapter 126 of the General Statutes or (2) ap- 
plicable federal standards require a binding deci- 
sion. In these two cases, the State Personnel 
Commission's decision shall be binding. 

(b) The parties shall be given notice not less 
than 15 days before the hearing by the Office of 
Administrative Hearings, which notice shall in- 
clude: 

(1) A statement of the date, hour, place, and 
nature of the hearing; 

(2) A reference to the particular sections of the 
statutes and rules involved; and 

(3) A short and plain statement of the factual 
allegations. 

(c) Notice shall be given personally or by cer- 
tified mail. If given by certified mail, it shall be 
deemed to have been given on the delivery date 
appearing on the return receipt. If giving of no- 
tice cannot be accomplished either personally or 
by certified mail, notice shall then be given in the 
manner provided in G.S. 1 A- 1 , Rule 4(jl). 

(d) Any person may petition to become a party 
by filing a motion to intervene in the manner 
provided in G.S. 1A-1, Rule 24. In addition, any 
person interested in a contested case may inter- 
vene and participate in that proceeding to the 
extent deemed appropriate by the administrative 
law judge. 

(e) ^\11 hearings under this Chapter shall be 
open to the public. Hearings shall be conducted 
in an impartial manner. Hearings shall be con- 
ducted according to the procedures set out in this 
Article, except to the extent and in the particulars 
that specific hearing procedures and time stand- 
ards are governed by another statute. 

(f) Unless another statute or a federal statute 
or regulation sets a time limitation for the filing 
of a petition in contested cases against a specified 
agency, the general limitation for the filing of a 
petition in a contested case is 60 days. The time 
limitation, whether established by another stat- 
ute, federal statute, or federal regulation, or this 
section, shall commence when notice is given of 
the agency decision to all persons aggrieved who 
are known to the agency by personal delivery or 
by the placing of the notice in an official deposi- 
tor,' of the United States Postal Service wrapped 
in a wrapper addressed to the person at the latest 
address given by the person to the agency. The 
notice shall be in writing, and shall set forth the 
agency action, and shall inform the persons of the 
right, the procedure, and the time limit to file a 
contested case petition. 

§ 150B-24. Venue of hearing, -(a) The 
hearing of a contested case shall be conducted: 



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( 1 ) In the county in this State in which any 
person whose property or rights are the 
subject matter of the hearing maintains 
his residence; 

(2) In the county where the agency maintains 
its principal office if the property or rights 
that are the subject matter of the hearing 
do not affect any person or if the subject 
matter of the hearing is the property or 
rights of residents of more than one 
county; or 

(3) In any county determined by the admin- 
istrative law judge in his discretion to 
promote the ends of justice or better serve 
the convenience of witnesses. 

(b) Any person whose property or rights are 
the subject matter of the hearing waives his ob- 
jection to venue by proceeding in the hearing. 

§ 150B-25. Conduct of hearing; answer. -- 
(a) If a party fails to appear in a contested case 
after proper service of notice, and if no 
adjournment or continuance is granted, the ad- 
ministrative law judge may proceed with the 
hearing in the absence of the party. 

(b) A party who has been served with a notice 
of hearing may file a written response, and a copy 
must be mailed to all other parties not less than 
10 days before the date set for hearing. 

(c) The parties shall be given an opportunity 
to present arguments on issues of law and policy 
and an opportunity to present evidence on issues 
of fact. 

(d| A party may cross-examine any witness, 
including the author of a document prepared by. 
on behalf of, or for use of the agency and offered 
in evidence. Any party may submit rebuttal ev- 
idence. 

§ 150B-26. Consolidation. -- When con- 

tested cases involving a common question of law 
or fact or multiple proceedings involving the 
same or related parties are pending, the Director 
of the Office of Administrative Hearings may or- 
der a joint hearing of any matters at issue in the 
cases, order the cases consolidated, or make other 
orders to reduce costs or delay in the proceedings. 

§ 150B-27. Subpoena. — .After the com- 

mencement of a contested case, the administra- 
tive law judge may issue subpoenas upon his 
own motion or upon a written request. When a 
written request for a subpoena has been made, 
the administrative law judge shall issue the re- 
quested subpoenas forthwith requiring the at- 
tendance and testimony of witnesses and the 
production of evidence including books, records, 
correspondence, and documents in their pos- 
session or under their control. I'pon written re- 
quest, the administrative law judge shall revoke 
a subpoena if, upon a hearing, he finds that the 



evidence the production of which is required does 
not relate to a matter in issue, or if the subpoena 
does not describe with sufficient particularity the 
evidence the production of which is required, or 
if for any other reason sufficient in law the 
subpoena is invalid. Witness fees shall be paid 
by the party requesting the subpoena to 
subpoenaed witnesses in accordance with G.S. 
7A-314. However, State officials or employees 
who are subpoenaed shall not be entitled to wit- 
ness fees, but they shall receive their normal sal- 
ary and they shall not be required to take any 
annual leave for the witness days. Travel ex- 
penses of State officials or employees who are 
subpoenaed shall be reimbursed as provided in 
G.S. 138-6. 

§ 150B-28. Depositions and discovery. — 

(a) A deposition may be used in lieu of other 
evidence when taken in compliance with the 
Rules of Civil Procedure, G.S. 1A-1. Parties in 
contested cases may engage in discovery pursuant 
to the provisions of the Rules of Civil Procedure, 
G.S. 1A-1. 

(b) On a request for identifiable agency records, 
with respect to material facts involved in a con- 
tested case, except records related solely to the 
internal procedures of the agency or which are 
exempt from disclosure by law, an agency shall 
promptly make the records available to. a party. 

§ 150B-29. Rules of evidence, -(a) In all 
contested cases, irrelevant, immaterial and un- 
duly repetitious evidence shall be excluded. Ex- 
cept as otherwise provided, the rules of evidence 
as applied in the trial division of the General 
Court of Justice shall be followed; but. when ev- 
idence is not reasonably available under the rules 
to show relevant facts, then the most reliable and 
substantial evidence available shall be admitted. 
It shall not be necessary for a party or his attor- 
ney to object at the hearing to evidence in order 
to preserve the right to object to its consideration 
by the administrative law judge in making a re- 
commended decision, by the agency in making a 
final decision, or by the court on judicial review. 

(b) Evidence in a contested case, including re- 
cords and documents, shall be offered and made 
a part of the record. Factual information or ev- 
idence not made a part of the record shall not be 
considered in the determination of the case, ex- 
cept as permitted under G.S. 150B-30. Docu- 
mentary evidence may be received in the form of 
a copy or excerpt or may be incorporated by 
reference, if the materials so incorporated are 
available for examination by the parties. L T pon 
timely request, a party shall be given an oppor- 
tunity to compare the copy with the original if 
available. 



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§ 150B-30. Official notice. -- Official notice 
may be taken of all facts of which judicial notice 
may be taken and of other facts within the spe- 
cialized knowledge of the agency. The noticed 
fact and its source shall be stated and made 
known to affected parties at the earliest practica- 
ble time, and any party shall on timely request 
be afforded an opportunity to dispute the noticed 
fact through submission of evidence and argu- 
ment. 

§ 150B-31. Stipulations. — (a) The parties 
in a contested case may, by a stipulation in writ- 
ing filed with the administrative law judge, agree 
upon any fact involved in the controversy, which 
stipulation shall be used as evidence at the hear- 
ing and be binding on the parties thereto. Parties 
should agree upon facts when practicable. 

(b) Except as otherwise provided by law, dis- 
position may be made of a contested case by 
stipulation, agreed settlement, consent order, 
waiver, default, or other method agreed upon by 
the parties. 

§ 150B-32. Designation of administrative law 
judge. — (a) The Director of the Office of Ad- 
ministrative I learings shall assign himself or an- 
other administrative law judge to preside over a 
contested case. 

(b) On the filing in good faith by a party of a 
timely and sufficient affidavit of personal bias or 
disqualification of an administrative law judge, 
the administrative law judge shall determine the 
matter as a part of the record in the case, and this 
determination shall be subject to judicial review 
at the conclusion of the proceeding. 

(c) When an administrative law judge is dis- 
qualified or it is impracticable for him to con- 
tinue the hearing, the Director shall assign 
another administrative law judge to continue 
with the case unless it is shown that substantial 
prejudice to any party will result, in which event 
a new hearing shall be held or the case dismissed 
without prejudice. 

§ 150B-33. Powers of administrative law 

judge. -- (a) An administrative law judge shall 
stay any contested case under this Article on 
motion of an agency which is a party to the 
contested case, if the agency shows by supporting 
affidavits that it is engaged in other litigation or 
administrative proceedings, by whatever name 
called, with or before a federal agency, and this 
other litigation or administrative proceedings will 
determine the position, in whole or in part, of the 
agency in the contested case. At the conclusion 
of the other litigation or administrative pro- 
ceedings, the contested case shall proceed and be 
determined as expeditiously as possible. 

(b) An administrative law judge may: 
( 1 ) Administer oaths and affirmations; 



(2) Sign and issue subpoenas in the name of 
the Office of Administrative Hearings, re- 
quiring attendance and giving of testi- 
mony by witnesses and the production of 
books, papers, and other documentary 
evidence; 

(3) Provide for the taking of testimony by 
deposition; 

(4) Regulate the course of the hearings, in- 
cluding discovery, set the time and place 
for continued hearings, and fix the time 
for filing of briefs and other documents; 

(5) Direct the parties to appear and confer to 
consider simplification of the issues by 
consent of the parties; 

(6) Stay the contested action by the agency 
pending the outcome of the case, upon 
such terms as he deems proper, and sub- 
ject to the provisions of G.S. 1A-1, Rule 
65; 

(7) Determine whether the hearing shall be 
recorded by a stenographer or by an elec- 
tronic device; and 

(8) Enter an order returnable in the General 
Court of Justice, Superior Court Division, 
to show cause why the person should not 
be held in contempt. The Court shall 
have the power to impose punishment as 
for contempt for any act which would 
constitute direct or indirect contempt if 
the act occurred in an action pending in 
Superior Court. 

(9) Determine that a rule as applied in a 
particular case is void because (1) it is not 
within the statutory authority of the 
agency, (2) is not clear and unambiguous 
to persons it is intended to direct, guide, 
or assist, or (3) is not reasonably necessary 
to enable the agency to perform a function 
assigned to it by statute or to enable or 
facilitate the implementation of a program 
or policy in aid of which the rule was 
adopted. 

(10) Impose the sanctions provided for in G.S. 
1A-1 or Chapter 3 of Title 26 of the North 
Carolina Administrative Code for non- 
compliance with applicable procedural 
rules. 
§ 150B-34. Recommended decision or order 
of administrative law judge. -- (a) Except as 
provided in G.S. 150B-36(c), in each contested 
case the administrative law judge shall make a 
recommended decision or order that contains 
findings of fact and conclusions of law. 

(b) After hearing the contested case and prior 
to issuing a recommended decision, the adminis- 
trative law judge shall give each party an oppor- 



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tunity to file proposed findings of fact and to 
present written arguments to him. 

§ 150B-35. No ex parte communication; 

exceptions. -- Unless required for disposition of 
an ex parte matter authorized by law, neither the 
administrative law judge assigned to a contested 
case nor a member or employee of the agency 
making a final decision in the case may commu- 
nicate, directly or indirectly, in connection with 
any issue of fact, or question of law, with any 
person or party or Ms representative, except on 
notice and opportunity for all parties to partic- 
ipate. 

§ 150B-36. Final decision, -(a) Before the 
agency makes a final decision, it shall give each 
party an opportunity to file exceptions to the 
decision recommended by the administrative law 
judge, and to present written arguments to those 
in the agency who will make the final decision 
or order. 

(b) A final decision or order in a contested case 
shall be made by the agency in writing after re- 
view of the official record as defined in G.S. 
150B-37(a) and shall include findings of fact and 
conclusions of law. If the agency does not adopt 
the administrative law judge's recommended de- 
cision as its final decision, the agency shall state 
in its decision or order the specific reasons why 
it did not adopt the administrative law judge's 
recommended decision. The agency may con- 
sider only the official record prepared pursuant 
to G.S. 150B-37 in making a final decision or 
order, and the final decision or order shall be 
supported by substantial evidence admissible un- 
der G.S. 150B-29(a), 150B-30, or 150B-31. A 
copy of the decision or order shall be served 
upon each party personally or by certified mail 
addressed to the party at the latest address given 
by the party to the agency, and a copy shall be 
furnished to his attorney of record and the Office 
of Administrative Hearings. 

(c) A determination by an administrative law 
judge in a contested case that the Office of Ad- 
ministrative Hearings lacks jurisdiction, or an 
order entered pursuant to the authority in G.S. 
7A-759(e) shall constitute a final decision. 

§ 150B-37. Official record. - (a) In a 

contested case, the Office of Administrative 
Hearings shall prepare an official record of the 
case that includes: 

( 1 ) Notices, pleadings, motions, and interme- 
diate rulings; 

(2) Questions and offers of proof, objections, 
and rulings thereon; 

(3) Evidence presented: 

(4) Matters officially noticed, except matters 
so obvious that a statement of them 
would serve no useful purpose; and 



(5) The administrative law judge's recom- 
mended decision or order. 

(b) Proceedings at which oral evidence is pre- 
sented shall be recorded, but need not be tran- 
scribed unless requested by a party. Each party 
shall bear the cost of the transcript or part thereof 
or copy of said transcript or part thereof which 
said party requests, and said transcript or part 
thereof shall be added to the official record as an 
exhibit. 

(c) The Office of Administrative Hearings shall 
forward a copy of the official record to the agency 
making the final decision and shall forward a 
copy of the recommended decision to each party. 

Article 3 A. 

Other Administrative Hearings. 

§ 150B-38. Scope; required; notice; venue. 

— (a) The provisions of this .Article shall apply 

to the following agencies: 

(1) Occupational licensing agencies; 

(2) The State Banking Commission, the 
Commissioner of Banks, the Savings and 
Loan Division of the Department of 
Commerce, and the Credit Union Divi- 
sion of the Department of Commerce; 
and 

(3) The Department of Insurance and the 
Commissioner of Insurance. 

(b) Prior to any agency action in a contested 
case, the agency shall give the parties in the case 
an opportunity for a hearing without undue delay 
and notice not less than 15 days before the hear- 
ing. Notice to the parties shall include: 

(1) A statement of the date, hour, place, and 
nature of the hearing; 

(2) A reference to the particular sections of the 

statutes and rules involved; and 

(3) A short and plain statement of the facts 
alleged. 

(c) Notice shall be given personally or by cer- 
tified mail. If given by certified mail, notice shall 
be deemed to have been given on the delivery 
date appearing on the return receipt. If notice 
cannot be given personally or by certified mail, 
then notice shall be given in the manner provided 
in G.S. 1A-1, Rule4(jl). 

(d) A party who has been served 'with a notice 
of hearing may file a written response with the 
agency. If a written response is filed, a copy of 
the response must be mailed to all other parties 
not less than 10 days before the date set for the 
hearing. 

(e) All hearings conducted under this Article 
shall be ope.i to the public. A hearing conducted 
by the agency shall be held in the county where 
the agency maintains its principal office. A 
hearing conducted for the agency by an admin- 
istrative law judge requested under G.S. 150B-40 



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shall he held in a county in this State where any 
person whose property or rights are the subject 
matter of the hearing resides. If a different venue 
would promote the ends of justice or better serve 
the convenience of witnesses, the agency or the 
administrative law judge may designate another 
county. A person whose property or rights are 
the subject matter of the hearing waives his ob- 
jection to venue if he proceeds in the hearing. 

(f) Any person may petition to become a party 
by filing with the agency or hearing officer a 
motion to intervene in the manner provided by 
G.S. LA - 1 . Rule 24. In addition, any person in- 
terested in a contested case under this Article 
may intervene and participate to the extent 
deemed appropriate by the agency hearing offi- 
cer. 

(g) When contested cases involving a common 
question of law or fact or multiple proceedings 
involving the same or related parties are pending 
before an agency, the agency may order a joint 
hearing of any matters at issue in the cases, order 
the cases consolidated, or make other orders to 
reduce costs or delay in the proceedings. 

(h) Livery agency shall adopt rules governing 
the conduct of hearings that are consistent with 
the provisions of this Article. 

§ 150B-39. 1 Vpo-in 'i i-.. di -.n>\ v-p. . 

subpoenas. -- (a) A deposition may be used in 
lieu of other evidence when taken in compliance 
with the Rules of Civil Procedure. G.S. 1A-1. 
Parties in a contested case may engage in dis- 
covery pursuant to the provisions of the Rules 
of Civil Procedure, G.S. 1A-1. 

(b) I'pon a request for an identifiable agency 
record involving a material fact in a contested 
case, the agency shall promptly provide the re- 
cord to a party, unless the record relates solely to 
the agency's internal procedures or is exempt 
from disclosure by law. 

(c) An agency may issue subpoenas in prepa- 
ration for, or in the conduct of, a contested case 
upon its own motion. If a written request is 
made by a party in a contested case, an agency 
shall issue subpoenas forthwith requiring the at- 
tendance and testimony of witnesses and the 
production of evidence including books, records, 
correspondence, and documents in their pos- 
session or under their control. Upon written re- 
quest, the agency shall revoke a subpoena if, 
upon a hearing, the agency finds that the evi- 
dence, the production of which is required, does 
not relate to a matter in issue, or if the subpoena 
does not describe with sufficient particularity the 
evidence the production of which is required, or 
if for any other reason sufficient in law the 
subpoena is invalid. Witness fees shall be paid 
by the party requesting the subpoena to 



subpoenaed witnesses in accordance with G.S. 
7A-314. However, State officials or employees 
who are subpoenaed shall not be entitled to any 
witness fees, but they shall receive their normal 
salary and they shall not be required to take any 
annual leave for the witness days. Travel ex- 
penses of State officials or employees who are 
subpoenaed shall be reimbursed as provided in 
G.S. 138-6. 

§ 150B-40. Conduct of hearing: presiding 

officer; ex parte communication, --(a) Hearings 
shall be conducted in a fair and impartial manner. 
At the hearing, the agency and the parties shall 
be given an opportunity to present evidence on 
issues of fact, examine and cross-examine wit- 
nesses, including the author of a document pre- 
pared by, on behalf of or for the use of the 
agency and offered into evidence, submit rebuttal 
evidence, and present arguments on issues of law 
or policy. 

If a party fails to appear in a contested case after 
he has been given proper notice, the agency may 
continue the hearing or proceed with the hearing 
and make its decision in the absence of the party. 

(b) Pxcept as provided under subsection (e) of 
this section, hearings under this Article shall be 
conducted by a majority of the agency. An 
agency shall designate one or more of its mem- 
bers to preside at the hearing. If a party files in 
good faith a timely and sufficient affidavit of the 
personal bias or other reason for disqualification 
of any member of the agency, the agency shall 
determine the matter as a part of the record in the 
case, and its determination shall be subject to 
judicial review at the conclusion of the proceed- 
ing. If a presiding officer is disqualified or it is 
impracticable for him to continue the hearing, 
another presiding officer shall be assigned to 
continue with the case, except that if assignment 
of a new presiding officer will cause substantial 
prejudice to any party, a new hearing shall be 
held or the case dismissed without prejudice. 

(c) The presiding officer may: 

(1) Administer oaths and affirmations; 

(2) Sign and issue subpoenas in the name of 
the agency, requiring attendance and giv- 
ing of testimony by witnesses and the 
production of books, papers, and other 
documentary evidence; 

(3) Provide for the taking of testimony by 
deposition; 

(4) Regulate the course of the hearings, set the 
time and place for continued hearings, and 
fix the time for filing of briefs and other 
documents; 

(5) Direct the parties to appear and confer to 
consider simplification of the issues by 
consent of the parties; and 



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(6) Apply to any judge of the superior court 
resident in the district or presiding at a 
term of court in the county where a hear- 
ing is pending for an order to show cause 
why any person should not be held in 
contempt of the agency and its processes, 
and the court shall have the power to im- 
pose punishment as for contempt for acts 
which would constitute direct or indirect 
contempt if the acts occurred in an action 
pending in superior court. 

(d) Unless required for disposition of an ex 
parte matter authorized by law, a member of an 
agency assigned to make a decision or to make 
findings of fact and conclusions of law in a con- 
tested case under this Article shall not commu- 
nicate, directly or indirectly, in connection with 
any issue of fact or question of law, with any 
person or party or his representative, except on 
notice and opportunity for all parties to partic- 
ipate. This prohibition begins at the time of the 
notice of hearing. An agency member may 
communicate with other members of the agency 
and may have the aid and advice of the agency 
staff other than the staff which has been or is 
engaged in investigating or prosecuting functions 
in connection with the case under consideration 
or a factually-related case. This section does not 
apply to an agency employee or party represen- 
tati%'e with professional training in accounting, 
actuarial science, economics or financial analysis 
msofar as the case involves financial practices or 
conditions. 

(e) When a majority of an agency is unable or 
elects not to hear a contested case, the agency 
shall apply to the Director of the Office of Ad- 
ministrative Hearings for the designation of an 
administrative law judge to preside at the hearing 
of a contested case under this Article. Upon re- 
ceipt of the application, the Director shall, with- 
out undue delay, assign an administrative law 
judge to hear the case. 

The provisions of this Article, rather than the 
provisions of Article 3, shall govern a contested 
case in which the agency requests an administra- 
tive law judge from the Office of Administrative 
Hearings. 

The administrative law judge assigned to hear a 
contested case under this Article shall sit in place 
of the agency and shall have the authority of the 
presiding officer in a contested case under this 
Article. The administrative law judge shall make 
a proposal for decision, which shall contain pro- 
posed findings of fact and proposed conclusions 
of law. 

An administrative law judge shall stay any con- 
tested case under this Article on motion of an 
agency which is a party to the contested case, if 



the agency shows by supporting affidavits that it 
is engaged in other litigation or administrative 
proceedings, by whatever name called, with or 
before a federal agency, and this other litigation 
or administrative proceedings will determine the 
position, in whole or in part, of the agency in the 
contested case. At the conclusion of the other 
litigation or administrative proceedings, the con- 
tested case shall proceed and be determined as 
expeditiously as possible. 

The agency may make its final decision only- 
after the administrative law judge's proposal for 
decision is served on the parties, and an oppor- 
tunity is given to each party to file exceptions and 
proposed findings of fact and to present oral and 
written arguments to the agency. 

§ 150B-41. Evidence; stipulations; official 

notice. -- (a) In all contested cases, irrelevant, 
immaterial, and unduly repetitious evidence shall 
be excluded. Except as otherwise provided, the 
rules of evidence as applied in the trial division 
of the General Court of Justice shall be followed; 
but, when evidence is not reasonably available 
under such rules to show relevant facts, they may 
be shown by the most reliable and substantial 
evidence available. It shall not be necessary for 
a party or his attorney to object to evidence at 
the hearing in order to preserve the right to ob- 
ject to its consideration by the agency in reaching 
its decision, or by the court of judicial review. 

(b) Evidence in a contested case, including re- 
cords and documents shall be offered and made 
a part of the record. Other factual information 
or evidence shall not be considered in determi- 
nation of the case, except as permitted under 
G.S. 150B-30. Documentary evidence may be 
received in the form of a copy or excerpt or may- 
be incorporated by reference, if the materials so 
incorporated are available for examination by the 
parties. Upon timely request, a party shall be 
given an opportunity to compare the copy with 
the original if available. 

(c) The parties in a contested case under this 
Article by a stipulation in writing filed with the 
agency may agree upon any fact involved in the 
controversy, which stipulation shall be used as 
evidence at the hearing and be binding on the 
parties thereto. Parties should agree upon facts 
when practicable. Except as otherwise provided 
by law, disposition may be made of a contested 
case by stipulation, agreed settlement, consent 
order, waiver, default, or other method agreed 
upon by the parties. 

(d) Official notice may be taken of all facts of 
which judicial notice may be taken and of other 
facts within the specialized knowledge of the 
agency. The noticed fact and its source shall be 
stated and made known to affected parties at the 



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earliest practicable time, and any party shall on 
timely request be afforded an opportunity to dis- 
pute the noticed fact through submission of evi- 
dence and argument. An agency may use its 
experience, technical competence, and specialized 
knowledge in the evaluation of evidence pre- 
sented to it. 

§ 150B-42. final agency decision; official 

record. -- (a) After compliance with the pro- 
visions of G.S. 150B-40(e), if applicable, and re- 
view of the official record, as defined in 
subsection (b) of this section, an agency shall 
make a written final decision or order in a con- 
tested case. The decision or order shall include 
findings of fact and conclusions of law. Findings 
of fact shall be based exclusively on the evidence 
and on matters officially noticed. F ; indings of 
fact, if set forth in statutory language, shall be 
accompanied by a concise and explicit statement 
of the underlying facts supporting them. A de- 
cision or order shall not be made except upon 
consideration of the record as a whole or such 
portion thereof as may be cited by any party to 
the proceeding and shall be supported by sub- 
stantial evidence admissible under G.S. 150B-41. 
A copy of the decision or order shall be served 
upon each party personally or by certified mail 
addressed to the part) at the latest address given 
by the party to the agency and a copy shall be 
furnished to his attorney of record. 

(b) An agency shall prepare an official record 
of a hearing that shall include: 

(1) Notices, pleadings, motions, and interme- 
diate rulings; 

(2) Questions and offers of proof, objections, 
and rulings thereon; 

(3) Evidence presented; 

(4) Matters officially noticed, except matters 
so obvious that a statement of them 
would serve no useful purpose; 

(5) Proposed findings and exceptions; and 

(6) Any decision, opinion, order, or report by 
the officer presiding at the hearing and by 
the agency. 

(c) Proceedings at which oral evidence is pre- 
sented shall be recorded, but need not be tran- 
scribed unless requested by a party. Each party 
shall bear the cost of the transcript or part thereof 
or copy of said transcript or part thereof which 
said party requests. 

Article 4. 
Judicial Review. 
§ 150B-43. Right to judicial review. --Any 
person who is aggrieved by the final decision in 
a contested case, and who has exhausted all ad- 
ministrative remedies made available to him by 
statute or agency rule, is entitled to judicial re- 
view of the decision under this Article, unless 



adequate procedure for judicial review is pro- 
vided by another statute, in which case the review 
shall be under such other statute. Nothing in this 
Chapter shall prevent any person from invoking 
any judicial remedy available to him under the 
law to test the validity of any administrative 
action not made reviewable under this Article. 

§ 150B-44. Right to judicial intervention 

when decision unreasonably delayed. — Unrea- 
sonable delay on the part of any agency or ad- 
ministrative law judge in taking any required 
action shall be justification for any person whose 
rights, duties, or privileges are adversely affected 
by such delay to seek a court order compelling 
action by the agency or administrative law judge. 
Except for an agency that is a board or commis- 
sion, an agency's failure to make a final decision 
within 60 days of the date on which all ex- 
ceptions and arguments are filed under G.S. 
1 50B-36(a) with the agency constitutes unrea- 
sonable delay. A board or commission's failure 
to make a final decision within the later of the 
60 days allowed other agencies or 60 days after 
the board's or commission's next regularly 
scheduled meeting constitutes an unreasonable 
delay. 

§ 150B-45. Procedure for seeking review; 

waiver. -- To obtain judicial review of a final 
decision under this Article, the party seeking re- 
view must file a petition in the Superior Court 
of Wake County or in the superior court of the 
county where the person resides. 

The person seeking review must file the petition 
within 30 days after the person is served with a 
written copy of the decision. A person who fads 
to file a petition within the required time waives 
the right to judicial review under this Article. 
For good cause shown, however, the superior 
court may accept an untimely petition. 

§ 150B-46. Contents of petition; copies 

served on all parties; intervention. -- The peti- 
tion shall explicitly state what exceptions are 
taken to the decision or procedure and what relief 
the petitioner seeks. Within 10 days after the 
petition is filed with the court, the party seeking 
the review shall serve copies of the petition by 
personal service or by certified mail upon all who 
were parties of record to the administrative pro- 
ceedings. Names and addresses of such parties 
shall be furnished to the petitioner by the agency 
upon request. Any party to the administrative 
proceeding may become a party to the review 
proceedings by notifying the court within 10 days 
after receipt of the copy of the petition. 

Any person aggrieved may petition to become 
a party by fifing a motion to intervene as pro- 
vided in G.S. 1A-1, Rule 24. 



NORTH CAROLINA REGISTER 



364 



GENERAL ST A TUTES OF NORTH CAROLINA 



§ 150B-47. Records filed with clerk of supe- 
rior court; contents of records; costs. -- Within 
30 days after receipt of the copy of the petition 
for review, or within such additional time as the 
court may allow, the agency that made the final 
decision in the contested case shall transmit to 
the reviewing court the original or a certified 
copy of the official record in the contested case 
under review together with: (i) any exceptions, 
proposed findings of fact, or written arguments 
submitted to the agency in accordance with G.S. 
150B-36(a); and (u) the agency's final decision 
or order. With the permission of the court, the 
record may be shortened by stipulation of all 
parties to the review proceedings. Any party 
unreasonably refusing to stipulate to limit the 
record may be taxed by the court for such addi- 
tional costs as may be occasioned by the refusal. 
The court may require or permit subsequent 
corrections or additions to the record when 
deemed desirable. 

§ 15UB-4S. Stay of decision. -- At any time 
before or during the review proceeding, the per- 
son aggrieved may apply to the reviewing court 
for an order staying the operation of the admin- 
istrative decision pending the outcome of the re- 
view. The court may grant or deny the stay in 
its discretion upon such terms as it deems proper 
and subject to the provisions of G.S. 1 A- 1 . Rule 
65. 

§ 150B-49. New evidence. — An aggrieved 
person who files a petition in the superior court 
may apply to the court to present additional evi- 
dence. If the court is satisfied that the evidence 
is material to the issues, is not merely cumulative, 
and could not reasonably have been presented at 
the administrative hearing, the court may remand 
the case so that additional evidence can be taken. 
If an administrative law judge did not make a 
recommended decision in the case, the court shall 
remand the case to the agency that conducted the 
administrative hearing. .After hearing the evi- 
dence, the agency may affirm or modify its pre- 
vious findings of fact and final decision. If an 
administrative law judge made a recommended 
decision in the case, the court shall remand the 
case to the administrative law judge. .After hear- 
ing the evidence, the administrative law judge 
may affirm or modify his previous findings of fact 
and recommended decision. The administrative 
law judge shall forward a copy of his decision to 
the agency that made the final decision, which in 
turn may affirm or modify its previous findings 
of fact and final decision. The additional evi- 
dence and any affirmation or modification of a 
recommended decision or final decision shall be 
made part of the official record. 



§ 150B-50. Review by superior court without 
jury. -- The review by a superior court of agency 



decisions under this Chapter shall be conducted 
by the court without a jury. 

§ 150B-51. Scope of review, -(a) Initial 
Determination in Certain Cases. In reviewing a 
final decision in a contested case in which an ad- 
ministrative law judge made a recommended de- 
cision, the court shall make two initial 
determinations. First, the court shall determine 
whether the agency heard new evidence after re- 
ceiving the recommended decision. If the court 
determines that the agency heard new evidence, 
the court shall reverse the decision or remand the 
case to the agency to enter a decision in accord- 
ance with the evidence in the official record. 
Second, if the agency did not adopt the recom- 
mended decision, the court shall determine 
whether the agency's decision states the specific 
reasons why the agency did not adopt the re- 
commended decision. If the court determines 
that the agency did not state specific reasons why 
it did not adopt a recommended decision, the 
court shall reverse the decision or remand the 
case to the agency to enter the specific reasons. 

(b) Standard of Review. .After making the de- 
terminations, if any, required by subsection (a), 
the court reviewing a final decision may affirm 
the decision of the agency or remand the case for 
further proceedings. It may also reverse or 
modify the agency's decision if the substantial 
rights of the petitioners may have been preju- 
diced because the agency's findings, inferences, 
conclusions, or decisions are: 

(1) In violation of constitutional provisions; 

(2) In excess of the statutory authority or ju- 
risdiction of the agency; 

(3) Made upon unlawful procedure; 

(4) Affected by other error of law; 

(5) Unsupported by substantial evidence ad- 
missible under G.S. 150B-29(a), 150B-30, 
or 150B-31 in view of the entire record as 
submitted; or 

(6) Arbitrary or capricious. 

§ 150B-52. Appeal; stay of court's decision. 
-- A party to a review proceeding in a superior 
court may appeal to the appellate division from 
the final judgment of the superior court as pro- 
vided in G.S. 7A-27. Pending the outcome of 
an appeal, an appealing party may apply to the 
court that issued the judgment under appeal for 
a stay of that judgment or a stay of the adminis- 
trative decision that is the subject of the appeal, 
as appropriate. 

Article 5. 
Publication of Administrative Rules. 



365 



NORTH CAROLINA REGISTER 



GENERAL STA TUTES OF NOR TH CAROLINA 



§ 150B-58. Short title. -- This Article may 
be cited as "The Registration of State Adminis- 
trative Rules Act". 

§ 150B-59. Filing of rules and executive or- 
ders. -- (a) Rules adopted by an agency and 
executive orders of the Governor shall be filed 
with the Director of the Office of Administrative 
I learings no sooner than 90 days before their ef- 
fective date. No rule, except temporary rules 
adopted under the provisions of G.S. 150B-13 
or rules approved under G.S. 143B-30.2(e) or 
reviewed and objected to under (f), shall become 
effective earlier than the first day of the second 
calendar month after that filing. 

(b) The acceptance for filing of a rule by the 
Director, by his notation on its face, shall con- 
stitute prima facie evidence of compliance with 
this Article. 

(c) Rules adopted by an agency subject to the 
provisions of Article 2 of this Chapter in effect 
on January 1, 19S6, that conflict with or violate 
the provisions of G.S. 150B-9(c) are repealed. 
Rules adopted by an agency subject to the pro- 
visions of Article 2 of this Chapter in effect on 
September 1, 1986, that do not conflict with or 
violate the provisions of G.S. 150B-9(c) shall re- 
main in effect until July 15, 1988. These rules 
are repealed effective July 16, 1988, unless the 
Administrative Rules Review Commission de- 
termines that a rule complies with G.S. 
143B-30.2(a). Provided, however, that: 

(1) The rules of the Office of State Personnel 
and the occupational licensing boards 
shall remain in effect until February 28, 
1989, but arc repealed effective March 1, 
1989, unless approved by the Administra- 
tive Rules Review Commission. 

(2) The rules of the Department of Human 
Resources shall remain in effect until June 
30, 1989, but are repealed effective July 1, 
1989, unless approved by the Administra- 
tive Rules Review Commission. 

(3) Although the Department of Cultural 
Resources, the Office of the Governor, 
and the Council of State did not file the 
reports required under Chapter 746, Ses- 
sion Laws of 1985, nevertheless the rules 
of these three agencies shall remain in ef- 
fect until February 28, 1989, but are re- 
pealed effective March 1, 1989, unless 
approved by the Administrative Rules 
Review Commission. 

Review of these rules shall be carried out in the 
manner prescribed in G.S. 143B-30.2 except that 
a rule determined to be in compliance shall re- 
main in effect. In the event of rules which the 
Commission determines do not comply with 
G.S. 143B-30.2, such rules may be revised or re- 



pealed by the agency without a rulemaking hear- 
ing in accordance with G.S. 150B- 12(h). Revised 
rules shall be returned to the Commission. If the 
Commission approves the rules, the Commission 
shall notify the agency and file the rules with the 
Office of Administrative Hearings. Rules 

adopted on or after January 1, 1986, shall be- 
come effective as provided in this Chapter. 

§ 150B-60. Form of rules; responsibilities of 
agencies; assistance to agencies. -- (a) In order 
to be acceptable for filing, the rule must: 

(1) Cite the statute or other authority pursu- 
ant to which the rule is adopted; 

(2) Bear a certification by the agency of its 
adoption; 

(3) Cite any prior rule or rules of the agency 
or its predecessor in authority which it 
rescinds, amends, supersedes, or supple- 
ments; 

(4) Be in the physical form specified by the 
Director of the Office of Administrative 
Hearings; and 

(5) Bear a notation from the Administrative 
Rules Review Commission that it has re- 
viewed the rule in accordance with G.S. 
143B-30.2. 

(b) Each agency shall designate one or more 
administrative procedure coordinators whose du- 
ties shall be to oversee all departmental functions 
required by this Chapter. The coordinator's du- 
ties shall include providing notice of public 
hearings; serving as liaison between the agency 
and the Office of Administrative Hearings, the 
Administrative Rules Review Commission and 
the public; and coordinating access to agency 
rules. 

(c) The Director of the Office of Administrative 
Hearings shall: 

(1) Maintain an agency rule-drafting section 
in the Office of Administrative Hearings 
to draft or aid in the drafting of rules or 
amendments to rules for any agency; and 

(2) Prepare and publish an agency rule- 
drafting guide which sets out the form and 
method for drafting rules and amend- 
ments to rules, and to which all rules shall 
comply. 

§ 150B-61. Authority to revise form, --(a) 
The Director of the Office of Administrative 
Hearings shall have the authority, following ac- 
ceptance of a rule for filing, to revise the form of 
the rule as follows: 

(1) To rearrange the order of rules, Chapters, 
Subchapters, Articles, sections, para- 
graphs, and other divisions or subd- 
ivisions; 

(2) To provide or revise titles or catchlines; 



NORTH CAROLINA REGISTER 



166 



GENERAL ST A TUTES OF NORTH CAROLINA 



(3) To reletter or renumber the rules and var- 
ious subdivisions in accordance with a 
uniform system; 
(4 1 To rearrange definitions and lists; and 
(5) To make other changes in arrangement 
or in form that do not alter the substance 
of the rule and that are necessary or de- 
sirable for an accurate, clear, and orderly 
arrangement of the rules. 
Revision of form by the Director shall not alter 
the effective date of a rule, nor shall revision re- 
quire the agency to readopt or to refile the rule. 
No later than the close of the fifth working day 
after the filing of a rule by an agency, the Direc- 
tor shall return to the agency that filed the rule a 
copy of the rule in any revised form made by the 
Director, together with his certification of the 
date of the rule's filing. 

The rule so revised as to form shall be substi- 
tuted for and shall bear the date of the rule ori- 
ginally filed, and shall be the official rule of the 
agency. 

(b) In determining the drafting form of rules 
the Director shall: 

(1) Minimize duplication of statutory lan- 
guage: 

(2) Not permit incorporations into the rules 
by reference to publications or other doc- 
uments which are not conveniently avail- 
able to the public; and 

(3) To the extent practicable, use plain lan- 
guage in rules and avoid technical lan- 
guage. 

(c) The agency shall be responsible for notify- 
ing the Director within 30 days after a rule be- 
comes effective of any typographical or technical 
error in the rule as codified. The Director shall 
correct the codified rule if it differs from the rule 
as adopted by the agency. Errors in any rule 
discovered more than 30 days after codification 
shall be changed only by the procedures estab- 
lished by .Article 2 of this Chapter. 

§ 150B-62. Public inspection and notification 
of current and replaced rules. -- (a) Imme- 
diatelv upon notation of a filing as specified in 
G.S. 150B-59(b), the Director of the Office of 
Administrative Hearings shall make the rule 
available for public inspection during regular of- 
fice hours. Superseded, amended, revised, and 
rescinded rules filed in accordance with the pro- 
visions of this Article shall remain available for 
public inspection. The current and the prior 
rules so filed shall be separately arranged in 
compliance with the provisions of G.S. 
150B-61(a). 

(b) The Director shall make copies of current 
and prior rules, filed in accordance with the pro- 



visions of this Article, available to the public at 
a cost to be determined by him. 
(c) Within 50 days of the acceptance by the 
Director of a rule for filing, the agency filing the 
rule: 

(1) Shall publish the rule as prescribed in any 
applicable statute; and 

(2) May distribute the rule in a manner se- 
lected by the agency as best calculated to 
give notice to persons likely to be affected 
by the rule. 

The rule so published or distributed shall con- 
tain the legend: "The form of this rule may be 
revised by the Director pursuant to the pro- 
visions of G.S. 150B-61." 

§ 150B-63. Publication of executive orders 
and rules; the North Carolina Register. -- (a) 
The Director of the Office of Administrative 
Hearings shall compile, index and publish exec- 
utive orders of the Governor and all rules filed 
and effective pursuant to the provisions of this 
Article. 

(b) As nearly as practicable the compilation 
shall, in classification, arrangement, numbering, 
and indexing, conform to the organization of the 
General Statutes. 

(c) If the Director determines that publication 
of any rule would be impracticable, he shall sub- 
stitute a summary with specific reference to the 
official rule on file in his office. 

(d) As soon as practicable after July 1, 19S5, 
the Director shall publish, in print or other form, 
a compilation of all rules in force pursuant to the 
provisions of this Article. Cumulative supple- 
ments shall be published annually or more fre- 
quently in the discretion of the Director. 
Recompilations shall be made in the Director's 
discretion. 

(dl ) The Director shall also publish at periodic 
intervals, but not less often than once each 
month, the North Carolina Register which shall 
contain information relating to agency, executive, 
legislative or judicial actions that are performed 
under the authority of, or are required by. or are 
issued to interpret, or that otherwise affect, this 
Chapter. The North Carolina Register shall also 
contain notices under G.S. 120- 165(a). 

(d2) In publishing proposed amendments to 
rules, the Director shall show the portion of the 
rule being amended as it is to the degree neces- 
sary to provide adequate notice of the nature of 
the proposed amendment, with changes shown 
by striking through portions to be deleted and 
underlining portions to be added. 

(e) Notwithstanding Article 1A of Chapter 125 
of the General Statutes, reference copies of the 
compilation, supplements, and recompilations of 
the rules, and the North Carolina Register shall 



36~ 



NORTH CAROLINA REGISTER 



GENERAL ST A TUTES OF NORTH CAROLINA 



be distributed by the Director as soon after pub- 
lication as practicable, without charge, only to 
the following officials and departments: 

(1) One copy to each county of the State, 
which copy may be maintained for public 
inspection in the county in a place deter- 
mined by the county commissioners; one 
copy to the Administrative Rules Review 
Commission; one copy each to the clerk 
of the Supreme Court of North Carolina 
and the clerk of the North Carolina Court 
of Appeals; one copy each to the libraries 
of the Supreme Court of North Carolina 
and the North Carolina Court of Appeals; 
one copy to the Administrative Office of 
the Courts; one copy to the office of the 
Governor; and five copies to the Legisla- 
tive Services Commission for the use of 
the General Assembly; 

(2) Upon request, one copy to each State of- 
ficial and department to which copies of 
the appellate division reports are furnished 
under G.S. 7A-343.1; 

(3) Five copies to the Division of State Li- 
brary of the Department of Cultural Re- 
sources, pursuant to G.S. 125-11.7; and 

(4) Upon request, one copy of the North 
Carolina Register to each member of the 
General Assembly. 



(f) The Director shall make available to persons 
not listed in subsection (e) copies of the compi- 
lation, supplements, and recompilations of the 
rules and the North Carolina Register, and shall 
make available to all persons copies of other 
public documents filed in the Office of Adminis- 
trative Hearings. The Director shall set a fee to 
be charged for publications and documents made 
available under this subsection at an amount that 
covers publication, copying, and mailing costs. 
All monies received by the Office of Administra- 
tive Hearings pursuant to this subsection shall 
be deposited in the State treasury in a special 
funds account to be held in trust for the Office 
of Administrative I learings to defray the expense 
of future recompilation, publication, and distrib- 
ution of such documents. All monies involved 
shall be subject to audit by the State Auditor. 

(g) Notwithstanding any other provision of 
law, the Employment Security Commission 
shall, within 15 days of adoption, file all rules 
adopted by it with the Director for public in- 
spection and publication purposes only. The 
Director shall compile, make available for in- 
spection, and publish the rules filed under this 
subsection in the same manner as is provided for 
other rules. 

§ 150B-64. Judicial and official notice. — 
Judicial or official notice shall be taken of any 
rule effective under this Article. 



NORTH CAROLINA REGISTER 



36S 



ADMINISTRA TIVE ORDER 



STATE OF NORTH CAROLINA IN THE OFFICE OF 

COUNTY OF WAKE ADMINISTRATIVE HEARINGS 

ORDER 

Under the provisions of G.S. 7A-752, as amended by Section 15, Chapter 1111 of the 1987 Ses- 
sion Laws (Regular Session 1988), Administrative Law Judge Beecher Reynolds Gray is designated 
Senior Administrative Law Judge. 

This the 13th day of July, 1988. 

s Robert A. Melott 

Chief Administrative Law Judge 



369 NORTH CAROLINA REGISTER 



VOTING RIGHTS ACT FINAL DECISION LETTERS 



[G.S. 120-30.9H, effective July 16, 1986, requires that all letters and other documents issued by the 
A ttorney General of the United States in which a final decision is made concerning a "change af- 
fecting voting" under Section 5 of the Voting Rights Act of 1 965 be published in the North Carolina 
Register. J 



U.S. Department of Justice 
Civil Rights Division 

WBR:MAP:PAR:dvs 

DJ 166-012-3 Voting Section 

VV1505 P.O. Box 66128 

W3283 Washington, D.C. 20035-6128 

July 14, 1988 

Jesse L. Warren, Esq. 

City Attorney 

P.O. Drawer W-2 

Greensboro, North Carolina 27402 

Dear Mr. Warren: 

This refers to the annexation (Ordinance No. 88-64) and the designation of the annexed area to 
District 4 for the City of Greensboro in Guilford County, North Carolina, submitted to the Attorney 
General pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We 
received your submission on May 16, 1988. 

The Attorney General does not interpose any objections to the changes in question. However, 
we feel a responsibility to point out that Section 5 of the Voting Rights Act expressly provides that the 
failure of the Attorney General to object does not bar any subsequent judicial action to enjoin the 
enforcement of such changes. See the Procedures for the Administration of Section 5 (28 C.F.R. 

51.41). 

Sincerely, 

Wm. Bradford Reynolds 
Assistant Attorney General 
Civil Rights Division 

By: 



Gerald W. Jones 
Chief, Voting Section 



NORTH CAROLINA REGISTER 370 



PROPOSED RULES 



TITLE 10 



DEPARTMENT OF HUMAN 

RESOURCES 



No 



oticc is hereby given in accordance with G.S. 
1 SOB- 1 2 that the North Carolina Council for the 
Hearing Impaired, Division of Vocational Reha- 
bilitation Sctrices intends to adopt regulations 
cited as 10 NCAC 20F .0401 - .0418. 



Th 



he proposed effective date 
cembcr 1, 19SS. 



of this action is De- 



Th 



he public hearing will be conducted at 4:00 
p.m. on September 8, 1988 at Lord Auditorium, 
Pack Memorial Library, 67 Haywood Street, 
Ashville, N.C. 



Cc 



■omment Procedures: Any interested person 
may present his/her comments at the hearing for 
a maximum of ten minutes or by submitting a 
written statement. Any person wishing to make a 
presentation at the hearing should contact: Jackie 
Stalnaker, Dhision of Vocational Rehabilitation 
Scnices. P.O. Box 26053, Raleigh, NC 27611, 
(919) 733-3364 by September 7, 19S8. The 
hearing record will remain open for written com- 
ments from August 9, 1988 through September 7, 
1988. Written comments must be sent to the ad- 
dress above and must state the proposed title or 
rides to which comments are addressed. Fiscal 
information is also available upon request from the 
same address. 

CHAPTER 20 - VOCATIONAL 
REHABILITATION 

SUBCHAPTER 20F - COUNCIL FOR THE 
HEARING IMPAIRED 

SECTION .0400 - COMMUNICATIONS 
SERVICES PROGRAM 

.0401 PURPOSE OF RULES 

The purpose of the rules in this Section is to 
specify the eligibility requirements, application 
procedures, distribution process and responsibil- 
ities of recipients and various agencies under the 
North Carolina Communications Services Pro- 
gram for the Deaf, Hearing and Speech Impaired 
required by G.S. 143B-216.5A and G.S. 
143B-216.5B. 



Statutory Authority 
143B-216.5B. 

.0402 DEFINITIONS 



G.S. 



1 43 B- 2 16.5 A; 



(b) 
(c) 



(d) 



(4) 



The definitions of the terms defined in G.S. 
143B-216.5A(b) apply to all the rules in this 
Section. In addition, the following terms have 
the meaning specified in this Rule, except where 
the context clearly indicates a different meaning: 

(1) "Council" means the North Carolina 
Council for the Hearing Impaired or its staff. 

(2) "Deaf-blind person" means a deaf person, 
as defined in G.S. 143B-216.5A, who is also 
certified as legally blind. 

(3) "Equipment set" means any one or more 
of the following: 

(a) ring signaling device as defined in G.S. 
143B-216.5A; 

telebraille device as defined in this Rule; 
telecommunications device for the deaf, 
hearing or speech impaired, or TDD as 
defined in G.S. 143B-216.5A; or 
volume control handset as defined in G.S. 
143B-216.5A. 

"Program" means the North Carolina 
Communications Services Program for the 
Deaf, Hearing and Speech Impaired, by 
which the council provides equipment sets 
capable of serving the needs of deaf, 
hearing-impaired and speech-impaired sub- 
scribers as required under G.S. 143B-216.5B. 
"Recipient" means the user of the equip- 
ment set or the parent, person standing in 
loco parentis or legal guardi-an of a minor 
user who is at least nine years of age but 
under 18 years of age. 
(6) "Regional center" means a regional com- 
munity service center for the hearing im- 
paired that is operated by the Department 
of Human Resources or an independent 
community service center for the deaf and 
hearing impaired. 

"Subscriber unit" means a single dwelling 
which receives basic telephone service and 
is subject to a monthly service charge for 
each access line. 

(8) "Telebraille device" means a TDD which 
has a modem connected to a braille machine 
which prints out embossed braille characters 
on a paper roll for a deaf-blind person to 
read. 

(9) "User" means a deaf, hearing-impaired or 
speech-impaired person or deaf-blind person 
within a subscriber unit for whose use the 
equipment set is provided. There may be 
multiple users in a subscriber unit. 



(5) 



(7) 



Statutory Authority 
143B-2I6.5B. 



G.S. 143B-216.5A: 



.0403 COUNCIL RESPONSIBILITIES 

The council shall: 



371 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



(1) provide equipment sets to recipients as 
prescribed by the rules in this Section, and 

(2) provide training in the use of equipment 
sets for recipients who desire training. 

Statutory Authority G.S. 143B-2I6.5B. 

.0404 INFORMATION CONCERNING THE 
PROGRAM 

Organizations serving the deaf, hearing impaired 
and speech impaired and publishers of newslet- 
ters for these groups who wish to receive written 
information regarding the program shall contact 
the council and request that their names be 
placed on a mailing list to receive such informa- 
tion. 

Statutory Authority G.S. 143B-216.5B. 

.0405 APPLICATION INFORMATION AND 
PROCEDURES 

(a) Interested persons may request an applica- 
tion packet by calling or writing the council at 
P.O. Box 26053, Raleigh, N.C. 27611, (919) 
733-3364, or by requesting one from any of the 
regional centers or any local division office. The 
application packet shall include: 

(1) a brochure which contains: 

(A) a description of the obligations of the 
council to the recipient; 

(B) a description of the rights and respon- 
sibilities of the recipient under the pro- 
gram; 

(C) a description of the application process; 

(D) a description of the council and its role 
as liaison to the deaf, hearing-impaired 
and speech-impaired community; and 

(E) office telephone numbers of the regional 
centers; 

(2) instructions for submitting reports and 
statements certifying that the applicant is 
deaf, hearing-impaired, speech-impaired, 
or deaf-blind; 

(3) a form for the recipient to sign indicating 
that the recipient understands and agrees 
with the rights and responsibilities of the 
recipient and desires services of the pro- 
gram; 

(4) a standard application form calling for the 
following information: 

(A) the full name, age, and address of the 
recipient and all users of the equipment 
set; 

(B) telephone number, the name and ad- 
dress of the person to whom the tele- 
phone service is billed, and the name and 
address of the telephone company; 



(C) personal and financial information re- 
garding all family members necessary to 
determine financial eligibility according to 
the provisions of Rule .0410 of this Sec- 
tion; and 

(D) copies of driver's license or other proof 
of identification and residence of the re- 
cipient; and 

(5) a form for recipients acting for minor users 
to sign indicating their agreement that 
equipment sets received under this pro- 
gram may be transferred to the user upon 
the user's 18th birthday, upon the request 
of the minor user according to the pro- 
visions of Rule .0416 of this Section. 

(b) Providing false or misleading information 
on the application shall subject any applicant se- 
lected as a recipient to forfeiture of any equip- 
ment set provided. 

(c) The regional centers shall provide assistance 
in completing application forms upon request. 

(d) Applicants shall complete and sign all 
forms, attach all necessary documentation, and 
mail the completed application packet, including 
a self-addressed stamped postcard, to the address 
specified on the application. 

(e) Upon receipt of completed application 
packets, the council shall acknowledge receipt by 
returning the applicant's self-addressed postcard. 
The council shall verify an applicant's eligibility 
within 45 days following receipt of the completed 
application, if possible. If the council cannot 
verify eligibility within 45 days, it shall inform the 
applicant in writing as soon as possible within 
the 45-day period indicating the problem and 
solicit clarification and additional information in 
order to determine the applicant's eligibility. 

Statutory Authority G.S. 143B-216.5B. 

.0406 PRIORITY AND LIMITATIONS FOR 
DISTRIBUTION 

(a) Equipment sets shall be distributed only to 
applicants who meet the eligibility criteria speci- 
fied in Rules .0407 through .041 1 of this Section 
and shall be distributed in the following priority 
order: 

(1) those who do not have the appropriate 
equipment set, who are 18 years old or 
older, and who have the most severe 
hearing impairment; 

(2) those who do not have the appropriate 
equipment set, who are under 18 years of 
age, and who have the most severe hearing 
impairment with those who are older 
within this priority category receiving 
higher priority according to age; 



NORTH CAROLINA REGISTER 



372 



PROPOSED RULES 



(3) those who have obsolete electro- 

mechanical equipment sets which are not 
feasible to continue to operate, who are 
18 years old or older, and who have the 
most severe hearing impairment; 
(b) Equipment sets shall be distributed ac- 
cording to the earliest postmark date of each 
completed application within each priority cate- 
gory set forth in (a) of this Rule. Equipment sets 
shall be distributed to eligible recipients within 
the limits of available funding. 

Statutory Authority G.S. 143B-216.5B. 

.0407 CERTIFICATION OK IMPAIRMENT 

(a) A prospective user shall be certified as deaf, 
hearing impaired, speech impaired or deaf-blind 
to be eligible to receive an equipment set. 

(b) To be certified a recipient shall submit a 
written report or statement from a licensed phy- 
sician, licensed audiologist, or licensed speech 
pathologist certifying that the person is deaf, 
hearing-impaired, speech-impaired, or deaf-blind 
and stating the nature and degree of the impair- 
ment. In addition, deaf-blind recipients shall 
submit a statement from a licensed physician 
stating the nature and degree of visual impair- 
ment. 

(c) Applicants may submit copies of certif- 
ication statements or reports that are on tile with 
a state or federal agency if sucn statements or re- 
ports meet the requirements in (b) of this Rule. 

(d) The certification reports or statements shall 
be included with the application when it is sub- 
mitted. 

Statutory Authority G.S. 143B-2I6.5B. 

.0408 AGE REQUIREMENTS 

A minor under nine years of age shall not be 
eligible as a user under the program. 

Statutory Authority G.S. 143B-216.5B. 

.0409 RESIDENCY REQLIREMENTS 

(a) An applicant shall be a permanent legal 
resident of the State of North Carolina to be eli- 
gible to receive an equipment set except as pro- 
vided in (e) of this Rule. 

(b) To be permanent legal residents of North 
Carolina, applicants shall not only live in the 
state, but also have the intention of making their 
permanent home in this state to which, whenever 
absent, they intend to return. 

(c) L'nemancipated minors have the residency 
of their parents, person standing in loco parentis, 
or if the parents are separated or divorced, the 
residency of the parent with legal custody. Eor 



purposes of this Rule, "person standing in loco 
parentis" refers to one who has put 
himself; herself in the place of a lawful parent by 
assuming the rights and obligations of a parent 
without formal adoption. 

(d) Residence continues until a new one is ac- 
quired. When a new residence is acquired, all 
former residences terminate. 

(e) The residency requirement shall not apply 
to a student who is 18 years of age or older who 
attends an accredited North Carolina educational 
institution or to a child or spouse of a temporary- 
resident of North Carolina who is a member of 
the United States military if the following re- 
quirements are met: 

(1) at the time of application, the applicant 
expects to remain in North Carolina for 
not less than 270 days; 

(2) the applicant submits proof of military or 
student status by attaching a copy of mil- 
itary ED. or student I.D. to the applica- 
tion form; and 

(3) the council is able to verify the proof of 
status submitted. 

Statutory Authority G.S. 143B-216.5B. 

.0410 FINANCIAL ELIGIBILITY 

(a) An applicant shall meet the council's fi- 
nancial needs test to be eligible to receive an 
equipment set. 

(b) Applicants for an equipment set who are 
included in public assistance grants such as 
AFDC, SSDI, SSI or the Food Stamp Program 
shall automatically meet the financial needs test 
upon submission of documentation of their el- 
igibility for the public assistance program. 

(c) Financial eligibility for applicants not in- 
cluded under (b) of this Rule shall be determined 
by applying the following economic scale: 

Family Size Gross Monthly Income 

1 $ 926 

2 $1,209 

3 $1,493 

4 $1,778 

5 $2,063 

6 $2,228 

7 $2,400 

8 $2,454 

(d) An applicant's family shall include the user 
and the following persons living in the same 
household as the user if the user is 18 years of age 
or older or if the user is less than 18 years of age 
and is married: 

( 1) the user's spouse; 

(2) the user's children under 18 years of age; 

(3) other individuals related to the user by 
blood, marriage, or adoption if the other 



373 



SORTH CAROLINA REGISTER 



PROPOSED RULES 



individuals have no income and do not 
have parent(s) or spouse(s) who have in- 
come living in the same household; and 
(4) the user's children of any age who are 
temporarily living away from the house- 
hold while attending school if they are 
being claimed as dependents by the user 
for tax purposes, 
(c) An applicant's family shall include the user 
and the following persons living in the same 
household as the user if the user is less than 18 
years of age and is not married: 

(1) the user's parents, not including step- 
parents; 

(2) siblings or half-siblings of the user, but 
not step- siblings, if the siblings are un- 
married and less than 18 years of age; 

(3) siblings or half-siblings of the user, but 
not step-siblings, if the siblings arc 18 
years of age or older and have no income; 
and 

(4) other individuals related to the user by 
blood, marriage, or adoption if the other 
individuals have no income and do not 
have parent(s) or spouse(s) who have in- 
come living in the same household. 

(f) In (e)(2) and (3) of this Rule, siblings who 
are temporarily living away from the household 
while attending school may be considered as liv- 
ing in the same household if they are being 
claimed as dependents by their parents for tax 
purposes and the parents are in the same house- 
hold as the user. 

(g) Gross monthly income of the family mem- 
bers shall be considered in the financial needs 
test. Examples of income may include such 
items as the following: 

(1) salaries and wages; 

(2) earnings from self-employment; 

(3) earnings from stocks, bonds, savings ac- 
counts, rentals, and all other investments; 

(4) public assistance money; 

(5) unemployment compensation; 

(6) alimony and child support payments re- 
ceived; 

(7) Social Security benefits; 

(8) Veteran's Administration benefits; 

(9) retirement and pension payments; 

(10) worker's compensation; and 

(11) supplemental security income benefits, 
(h) The following shall be excluded in the 

computation of gross monthly income: 

(1) combined, available cash in the bank not 
to exceed six times the gross monthly in- 
come for the family size; 

(2) tax value of property held; and 



(3) income that children may earn from 
babysitting, lawn mowing, or other mis- 
cellaneous tasks. 
(i) The time period to be used as the basis for 
computing gross monthly income shall be the 
month preceding the date of application. For 
income that is not received on a monthly basis, 
the monthly pro rata share of the most recent 
receipt of the income shall be included in the 
computation. 

Statutory Authority G.S. I43B-216.5B. 

.041 1 ELIGIBILITY FOR REAPPLICATION 

Recipients who have received equipment sets 
are not eligible to reapply for new equipment sets 
until five years after the date of receipt of the in- 
itial equipment set. However, recipients may 
renew lease agreements on the original equip- 
ment set according to Rule .0413(b) of this Sec- 
tion. 

Statutory Authority G.S. I43B-216.5B. 

.0412 PROVISION OF EQUIPMENT SETS 

(a) Only one equipment set shall be provided 
per subscriber unit that is the permanent, legal 
residence of one or more deaf, hearing-impaired, 
speech-impaired, or deaf-blind eligible users. In 
the event that two or more recipients share a 
common, permanent, legal residence constituting 
a subscriber unit, equipment in excess of one 
equipment set shall be returned to the local re- 
gional center. 

(b) The equipment set shall be granted in the 
name of the recipient. There shall be only one 
recipient per subscriber unit. Recipient status 
shall be granted to an adult user within the sub- 
scriber unit. In the absence of an adult user 
within the subscriber unit, recipient status shall 
be granted to the parent, person standing in loco 
parentis, or legal guardian residing with a minor 
user in the subscriber unit. 

Statutory Authority G.S. I43B-216.5B. 

.0413 OWNERSHIP: LEASE: LIABILITIES 

(a) All equipment sets distributed according to 
the rules in this Section shall remain the property 
of the State of North Carolina. Each recipient 
shall sign a form indicating he/she understands 
and accepts the requirements of the lease agree- 
ment regarding ownership, liability, and respon- 
sibilities. 

(b) Contingent upon the recipient's compliance 
with the rules in this Section, all equipment sets 
shall be leased free of charge to the recipient for 
a period of five years. At the end of the five-year 



NORTH CAROLINA REGISTER 



374 



PROPOSED RULES 



period, the recipient may renew the lease agree- 
ment for another five-year lease of the equipment 
set. At such time, the equipment set shall be 
returned to the nearest regional center for a visual 
check and records update. 

(c) Equipment sets shall not be sold, loaned, 
or otherwise transferred from the possession of 
the original recipient. Transfers shall subject the 
recipient to liability for the full replacement cost 
of the equipment set. 

Statutory Authority G.S. 143D-216.5B. 

.0414 TELEPHONE BILLS: MAINTENANCE: 
REPORTING LOSS/DAM AGE/THEFT 

(a) The recipient shall be responsible for the 
payment for all telephone services incurred with 
the use of the equipment set. 

(b) While the equipment set is under warranty, 
the recipient shall report any needed repairs to 
the council according to the directions given by 
the council at the time the equipment set is leased 
to the recipient. 

(c) All ordinary expense of maintenance and 
repair of the equipment set not covered by war- 
rant}' or after the warranty expires shall be the 
responsibility of the recipient. If an equipment 
set is damaged, lost, or destroyed due to 
negligence of the recipient and not due to ordi- 
nary wear and tear, the recipient shall be held 
responsible for the cost of replacing the lost or 
destroyed equipment set or restoring the dam- 
aged equipment set to its original condition. 

(d) The recipient shall immediately inform the 
regional center if the equipment is lost, stolen, 
or damaged. If equipment is stolen, local police 
shall be informed and a copy of the police report 
shall be forwarded by the recipient to the regional 
center within five days of the date the theft was 
reported. 

Statutory Authority G.S. 143B-216.5B. 

.0415 RELOCATION OR DEATH OF 
RECIPIENTS 

(a) If a recipient permanently relocates outside 
of North Carolina, the recipient shall give the 
council written notice and return the equipment 
set to the nearest regional center prior to the 
move. If a recipient dies, written notice shall be 
given by the deceased's estate and the equipment 
set returned to the nearest regional center within 
30 days after the recipient's death. 

(b) If there are other users residing within a 
subscriber unit where the recipient dies or relo- 
cates outside of North Carolina, one of the users 
shall apply for recipient status according to the 



procedures specified in Rule .0405 of this Sec- 
tion. 

(c) If a recipient plans to relocate within North 
Carolina, the recipient shall give the council 
written notice of the new address and the date of 
the planned move prior to moving. 

(d) The equipment set shall be returned to the 
regional center if all users permanently depart 
from the subscriber unit. 

Statutory Authority G.S. I43B-216.5B. 

.0416 TRANSFER TO MINOR USERS 

In cases where the recipient is not a user but the 
parent, person standing in loco parentis, or legal 
guardian of a minor user, the recipient shall give 
the council written notice when the minor user 
becomes IS years of age. The equipment set may 
be transferred to the minor user upon receipt of 
a written request for transfer from the minor and 
receipt of all appropriate, signed responsibility 
forms. The council may make the transfer by 
adjusting the records to reflect the proper recipi- 
ent of the unit. 

Statutory Authority G.S. I43B-216.5B. 

.0417 REPORTS FROM LOCAL AGENCIES 

(a) Each county manager shall inform the 
council of the name, address and telephone 
number of the hospital, or hospitals if more than 
one, in the county which has a TDD installed 
and in operation as required under G.S. 
143B-216.5B(f). 

(b) Each county sheriff's department, city po- 
lice department, and firefighting agency shall in- 
form the council of the telephone number with 
which a TDD is available as required under G.S. 
143B-216.5B(f). 

(c) Each 911 emergency number system and 
each agency receiving automatically routed calls 
through a 911 emergency number system shall 
inform the council of the availability and opera- 
tion of a TDD unit. 

Statutory Authority G.S. 143B-2I6.5B. 

.0418 WAIVER OF RULES 

(a) The state coordinator of the council in 
concert with the division director may waive any 
rule in this Section provided the issuance of the 
waiver is for good cause and does not waive any 
statutory requirement. 

(b) Requests for waivers shall be sent to the 
State Coordinator, Council for the Hearing Im- 
paired, P.O. Box 26053, Raleigh, N.C. 27611. 

(c) The request shall be in writing and shall 
contain: 



375 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



(1) the name, address, and telephone number 
of the requester; 

(2) the rule number(s) and title of the rule(s) 
or requirements for whieh waiver is being 
sought; and 

(3) a statement of the facts necessitating the 
request with supporting documents as 
appropriate. 

(c) Prior to issuing a decision on the waiver 
request, the state coordinator and the division 
director may request additional information or 
consult with additional parties as appropriate. 

(d) A decision regarding the waiver request 
shall be issued in writing by the state coordinator 
and shall state the reasons why the request was 
granted or denied and any special conditions re- 
lating to the request. 

Statutory Authority G.S. 143B-2I6.5B. 

TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 



iS otice is hereby given in accordance with G.S. 
1 SOD- 1 2 that the the S'orth Carolina Board of 
Nursing intends to amend regulations cited as 21 
NCAC36 .02/0 and .0223. 

1 he proposed effective date of this action is 
January 1. 19S9. ' 

1 he public hearing will be conducted at 2:00 
p.m. on September 28, I9SS at Shell Island Resort 
Hotel, Wrightsville Beach. North Carolina. 

Comment Procedures: Any person wishing to 
present oral testimony relevant to proposed ride 
may register at the door before hearing begins and 
present hearing officer with a written copy of tes- 
timony. Written statements may be directed, five 
days prior to the hearing date, to the North 
Carolina Board of Nursing, P. O. Box 2129, 
Raleigh, NC 27602. 

CHAPTER 36 - BOARD OF NLRSING 
SECTION .0200 - LICENSURE 

.0219 TEMPORARY LICENSE 

(a) The Board of Nursing '. hull may issue a 
Status A nonrenewable temporary license te- 
persons who have under the following circum- 
stances: 

(1) A person is eligible for a Status A 
nonrenewable temporary license if that 
person has: 



(44 (A) graduated from approved nursing 
programs, filed a completed examination 
application form with correct fee, aft4 
moot meets all qualifications for licensure 
by examination in North Carolina, and is 
scheduled for the licensure examination 
at the first opportunity after graduation: 
or 

(4) fi4e4 a compl e t e d application fof licensure 
without examination v4th correct fee a«4 
provided validation ef current lie on so i» 
another jurisdiction; «f 
f4) (BJ_ filed an application for licensure 
without examination with correct fee and 
provided verification of awaiting the re- 
sults e» of the first writing of the exam- 
ination developed by the National 
Council of State Boards of Nursing, Inc. 
in another jurisdiction. 

(2) The Status A nonrenewable temporary' H^ 
cense expires on the lesser of six months 
or the date a full license is issued or notice 



of failure of the examination is received. 



01 



[41 



Status A temporary license authorizes the 
holder to: 

(A) practice only in nursing situations 
where direct supervision by a registered 
nurse is available and at_ a standard of care 
of a fullv licensed nurse: and 

(B) perform direct patient care only, i.e., 
may not accept authority for nor assume 
responsibility to assign, supervise, or di- 
rect other nursing personnel: and 

(C) participate in such orientation and 
continuing education activities as the em- 
ployer offers to prepare the holder of a 
Status A temporary license for the em- 
ployment position. 

1 Iolders of valid Status A temporary h^ 
cense shall identify themselves as R.N. 



Applicant (R.N. A.) or I..P.N. Applicant 
(L.P.N. A.), as the case may be, after sig- 
natures on records. 
(5) I'pon expiration, revocation, or return of 
the Status A temporary license, the indi- 
vidual is ineligible to practice nursing as 
described in Paragraph (a)(3) of this Rule. 
fb} A temporary licence wtll be issued to »*4y- 
those graduates wb& make application a»4 afe 
scheduled fof the licensure examination at- the 
fert- opportunity after graduation. Requests fof 
exceptions must be submitted te- the board ift 
writing. 

ib) The board may issue a Status P 

nonrenewable temporary license to persons who 
have filed a completed application for licensure 
without examination with correct fee and pro- 



NORTH CAROLINA REGISTER 



376 



PROPOSED RULES 



ided validation of an active license in another 



jurisdiction. 

( 1 ) I lie Status P nonrenewable temporary lh 
cense expires on the lesser of six months 
or the date a full license is issued or when 
it is determined the applicant is not qual- 
ified to practice nursing in North 
Carolina. 

(2) Status P temporary- license authorizes the 
holder to practice nursing m the same 
manner as a fullv licensed R.N, or I.I'.N., 
\\ hichcvcr the case may be. 

(3) I folders of valid Status P temporary lh 
cense shall identify themselves as Regis- 



tered Nurse Petitioner (R.N. P.) or L.P.N. 
petitioner ( 1 .P.N. P.), as the case may be, 
alter signatures on records. 
(4) Upon expiration, revocation, or return of 
the Status P temporary license, the indi- 
\idual is ineligible to practice nursing as 
described in Paragraph (b)(2) of this Rule. 
(e) 44*e nonren e wabl e temporary license em- 
pires e» the lessef ef 4* months ef the date a h- 
eease » issued ef notice ef failure ef the 
examination is received ef h is determin ed the 
applicant is net qualified te practice nursing m 
North Carolina. 

fd} I pon expiration, revocation Bf return ef- 
t-he temporary licence, the individual is ineligibl e 
te practice nun i ing as described h* Paragraph fef 
e£ t&s Rul e . 

fe+ 4-he temporary licens e authorises the holder 
te* 

(4} practice only m nursing situations where 
direct supervision by a registered nurse is 
available a«4 at the standard ef safe ef a 
fully licensed nurse; B&4 
(3^ perfonn dir e ct pati e nt eafe only, he^ fftay 
net acc e pt authority f-©f wof assum e re- 
sponsibility te- assign, supervise ef direct 
other nursing personnel; a«d 
frfy participate m- such orientation a»d con 
tinuing education activities a* the em- 
ployment position. 
ff4 Holders ef valid temporary license shall 
identify themselv e s as R . N . Applicant (App.) ef 
1 .P.N. Applicant (App.) as the ease may- he 7 
after signatures e» r e cords. 

Statutory Authority G.S. 90-171.33. 

.0223 CONTINUING EDUCATION 
PROGRAMS 

(c) Approval process. 

(6) 44*e board wdf publish a fot ef approved 

programs at least quarterly. Approval of 

continuing education programs will be 

included in published reports of board 



action. A list of approved programs will 
be maintained in the board's tile. 

Statutory Authority G.S. 90-/71.42. 



•klckkkkkkkkkkkkkkkk 



No 



otice is hereby gh<en in accordance with G.S. 
1 SOB- 12 that the Board of Podiatry Examiners 
intends to adopt regulations cited as 21 NCA C 52 
.0209, .0303, .0610; amend .0102 - .0103, .0201 - 
.0202, .0204 - .0208, .0301 - .0302, .0402 - .0404, 
.0408, .0601 - .0606. .0701 - .0703, .1002, .1005, 
.1203 - .1204, .1301 - .1302; repeal .0203, .0401, 
.0405 - .0407, .0501 - .0504, .0607 - .0609, .0801 
- .0803, .0901 - .0908. .1/01 - .1107, .1201. 

1 he proposed effective date of this action is De- 
cember I, 1988. 

1 he public hearing will be conducted at 1:00 

p.m. on September 16, 1988 at The office of: 

Dr. C.Jeff Mauney 

707 North Morgan Street 

Shelby. North Carolina 28150. 



Co 



omment Procedures: Any person may present 
oral or written testimony or data relevant to the 
action proposed at the public rulemaking hearing 
to be held on Friday. September 16, 1988 at 1:00 
p.m. at the office of Dr. Jeff Mauney, 707 North 
Morgan Street, Shelby. North Carolina 28150 by 
appearing at the hearing or mailing the material 
or data to Dr. C. Jeff Mauney, 707 North Morgan 
Street, Shelby, North Carolina 28150 in advance 
of the hearing. 

CHAPTER 52 - BOARD OF PODIATRY 
EXAMINERS 

SECTION .0100 - ORGANIZATION OF THE 
BOARD 

.0102 MEMBERSHIP 

4-he board shall he composed ef three 
podiatrists licensed te practice podiatry is the 
State ef North Carolina, whe shall hav e been 
practicing m the stat e fef at least five years. They 
Vr+h he elected by- the North Carolina Podiatry 
Society aed 4+ah 1 serve a thre e yea* to mi. ©«e 
member shall he elected at each annual meeting 
ef the No nh Carolina Podiatry Society. A 
member may serve only tw© consecutive tonus. 

The board shall consist of four members ap- 
pointed by the Governor as provided m the 
General Statutes. 



ill 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



Statutory Authority G.S. 90-202.4. 

.0103 ANNUAL MEETING: ELECTION 
AND OFFICERS 

(a) The annual business meeting of the board 
shall be held immediately following the annual 
mooting ef the North Carolina Podiatry Society 
for the purpose of reviewing the previous year's 
activities, planning the coming year's business 
and electing officers. 

(b) The board will elect the following officers 
whose duties witt be are specified as follows: 

(1) President: 

(A) shall serve as presiding officer at all 
meetings or hearings held by the board; 

(B) shall assign subjects to board members 
for examination; 

(C) shall supervise all examinations given 
by the board. 

(2) Vice-President: 

(A) shall assume all duties of the president 
in event of his absence; 

(B) shall assume the office of president 
should that office be vacated. become 
vacant. 

(3) Secretary: Treasurer 

(A) shall keep a» accurate record of all 
meetings, hearings, and transactions of the 
board; 

(B) Shall keep a» accurate' record ef all fi- 

nnn.--fil »-»-> .lit. irt~ j-t T t 1 i , I h.i nil ■■ i n i I an til i ' ill i 

rTTTTTCTTTT IIIUIIVI J K7 T 1 1 IV I ' (. .' II 1 U , CTTTCT Ulllll.lllll T 

shall have the financial records verified by 
the offic e of- the State Auditor; all corre- 
spondence relating to matters before the 
board shall be sent from the office of and 
over the signature of the secretary; 

(C) Shall annually submit a written report 
ef the board's activities (including fin an 
eial report) te- the board, the Governor ©f 
the State of North Carolina, Secret apy ©f 
State, a»d the North Carolina Podiatry 
Society; all forms and records of the 
board, except those pertaining to finance, 
shall be held in and issued from the office 
of the secretary; 

(D) Ah correspondence relating te- matters 
before the board shall be sent- from the 
offico ef- afl4 eve* the signatur e ef the 
secretary tr e asurer; the office of the hoard 
shall be in Raleigh and the mailing address 
of the board is Post Office Box 1088, 
Raleigh. North Carolina 27602. 

I I ' \ ,\ 1 1 f irnii- 'iti^ r. I,'. \r, li- .- 1 t t l-i ;t Ua q j-,T .- li ■-> 1 I 

\ * ' j mr ik 'i iii.i in iu IT.TJTTI vi "i rrr i j w t"*t"*t"tttt ?'l lull 

\~\t\ ll' I I I II 'I III 1 I I'f'l I I ft i 1 ' ■'■ •* "~* *"■' nlli; 'Q ,~\ £ tfm 
rr^ IIV-'IU TTT 111 IU 1 J JUL ll 1 1 T.7 111 11 IV K.Tt I IT.T? rTT 11 It? 

oecretary treasurer; 
fp) The offico ef the board shall be m the 
offioo ef- the socrotarv treasurer, ffe- >rr Ft 



Costin, Jfr? 1230 Medical Center Drive, 
Wilmington, North Carolina, 38 - 10 1 . 
(4) Treasurer: 

(A) shall keep an accurate record of aU fi- 
nancial matters of the board, and annually 
shall have the financial records verified by 
the Office of the State Auditor; 

(B) shall annually submit a wntten report 
of the board's financial activities to the 
board, the Governor of the State of North 
Carolina, Secretary of State, and the 
North Carolina Podiatry Society. 



(c) The election of officers and membership to 
the board shall be in accordance with the General 
Statutes of North Carolina, Chapter 90-202.4. 



History 
90-202.4. 



Note: Statutory Authority G.S. 



SECTION .0200 - EXAMINATION AND 
LICENSING 

.0201 APPLICATION 

Anyone who meets the statutory requirements 
ef these statut e s and wishes to apply for exam- 
ination may do so by submitting written appli- 
cation to the office of the secretary treasurer of 
the board at 4-24© Medical Center Drive, 
Wilmington, - North Carolina, 28101. Post Office 
Box 1088, Raleigh, North Carolina 27602. Such 
application shall be made on BPF Form No. 1 
(Application for Examination) or BPE Form 
No. 2 (Application for Reciprocity). This form 
w4h require the applicant to- provide the board 
with detailed information » regards te- the appli 
cant's educational background, his training » 
podiatry, his family background, a«4 d e tailed m- 
formation t» regards te- his personal a«4 moral 
background. Applicants must also- shall furnish 
the board with certification of graduation from a 
four year high school, completion of at least two 
years of undergraduate college education, and 
graduation from an accredited college of podiatric 
medicine as provided in the statutes. The appli- 
cation will state the amount of the fee^ which is 
iion-rchmdaHe. The application must be ac- 
companied by the application fee, te- be as deter- 
mined by the board, but not to exceed eme 
hundred dollars ($100.00). two hundred dollars 
($200.00). Applications must also be notarized 
by a Notary Public in good standing. Applica- 
tions shall also include Release of Information 
Forms. 



Statutory Authority G.S. 90-202.5; 90-202.6; 
90-202.7. 

.0202 EXAMINATION 



NORTH CAROLINA REGISTER 



37S 



PROPOSED RULES 



president an4 vice president members of the 
board and be attested to by tfte seal aft4 signature 
e£ the Decretory treasurer ©f the board, affixing 



The board shall conduct an examination of all 
qualified applicants at least once each year during 
tfie month ef Juno m tfie City ef Raleigh, North 
Carolina, at such time and at such place as the the official seal of the Board of Podiatry Fxam 
board may choose. This examination may be 
written, oral, or practical, clinical or any combi- 
nation of written, oral, and practical, clinical as 
provi ded bv statute. Each board member wiH 



incrs. 



as Statutory Authority G.S. 90-202.6; 90-202.7. 



prepare aft4 administer e xaminations i» tbe sub 
jects assigned t© h+m- by the president. Theoo 
subjects may include anatomy, physiology, 
bacteriology, chemistry, dermatology, podiatry, 
surgery, materia modica, pharmacology', a«4 
pathology. 

Statutory Authority G.S. 90-202.6. 
.0203 TEMPORARY LICENSE (REPEALED) 

Statutory Authority G.S. 90-202.6. 

.0204 RE-EXAMINATION 

Unsuccessful candidates for licensure may apply 
to the board for re-examination within a period 
of one year and be entitled to re-examination 
upon the payment of the examination fee, which 
fee will be specified in the application form and 
shall not t© exceed w» hundred dollars 
(til ) C).(10). two hundred dollars ($200.00). 

Statutory Authority G.S. 90-202.6. 

.0205 PRACTICE ORIENTATION 

The board may require each applicant to spend 
a up_ to one week as a practice orientation period 
to better equip them to practice podiatry in 
North Carolina in the office of and under the di- 
rection of a podiatrist practicing in North 
Carolina. Such orientation shall take place only 
in those offices approved by the board, and as- 
signment of orientation office shall be made by 
the secretary treasurer, considered as a portion 
of the clinical examination in podiatry. The If 
cense shall not be issued until the orientation re- 
quirement has been fulfilled. Such orientation 
period shall be considered a* a portion ©£ the 
practical examination m podiatry. 



Statutory Authority 
90-202.6 ( a) (b). 



G.S. 90-202.4(g); 



.0206 LICENSING 

l_ pon the successful completion of all the re- 
quirements of the board, each successful candi- 
date shall be issued a certificate, license £ BPE 
Form No. 2r 3j which shall be numbered and 
contain the applicant's name and date of issu- 
ance. This certificate shall be signed by the 



.0207 ANNUAL RENEWAL OF LICENSE 

The secretary treasurer of the board shall mail 
to the last known address of each license holder 
each year a form on which to apply for renewal 
of his license (BPE Form No. i 4 ). This form 
may request such information as the board feels 
is required to keep accurate records of those 
holding licenses to practice podiatry in North 
Carolina. This application, along wftft A© Fe- 
nowal feer which wtft be determined b¥ &e board 
b«t sbaU ©©4- e xce e d fifty dollars ($50.00), ffh** 
be received by ft*© secretary treasurer ©f ft*© 
board ©» ©f before the fif^+ day ©f J-t4y ©f each 
v e ar. Upon receipt ©f application aw*, teer ft*e 
s e cretary treasurer shall provide eaefi podiatrist 
with a certificate ©f renewal specifying tfie period 
e# time covered by ft*e renewal certificate a©4 
signed by ftte secretary treasurer. The penalties 
for failure to complv are specified in General 
Statutes 90- 44>©r 202.10. 

Statutory Authority G.S. 90- 202. JO. 

.0208 CONTINUING EDUCATION 

An additional requirement for issuance of the 
annual renewal certificate shall be certification to 
the board of proof of having complied with the 
Continuing Education Clause Provisions of the 
General Statutes. The board shall notify all 
podiatrists of the number of hours which shall 
be required and what programs, seminars, or 
other courses of study will be accepted as fulfill- 
ing this requirement. The board will consider 
any other courses a license holder wishes to at- 
tend if ample information is provided to the 
board. The board may provide a form (BPE 
No. 4 5 ) which would include provides for 
dates, location, and faculty of such programs and 
which would is to be signed by an executive of- 
ficer of the organization or institution sponsoring 
such programs. Verification is required as pro- 
vided bv statute. 

Statutory Authority G.S. 90-202.11. 

.0209 APPLICANTS LICENSED IN OTHER 
STATES 

If an applicant for licensure is already licensed 
in another state to practice podiatry, the board 
shall issue a license to practice podiatry in the 



3 79 



NOR TH CA ROL1NA R EG IS TER 



PROPOSED RULES 



State of North Carolina only upon evidence that 
said podiatrist has complied with the require- 
ments as set forth in General Statute 90-202.7 of 
the Podiatry' Practice Act. Presentation of such 
evidence is the responsibility of the podiatrist 
seeking reciprocity to practice in the State of 
North Carolina. This evidence shall include 
verification from the Board of Podiatry' Examin- 
ers of the state where applicant has last practiced 
that applicant is in good standing, has no disci- 
plinary action pending, and history of previous 
disciplinary action, if any. 

Statutory Authority G.S. 90-202.7. 

SECTION .(MOO - PROFESSIONAL 
CORPORA! IONS 

.0301 REGISTRATION 

No podiatrist or group of podiatrists may oper- 
ate in the State of North Carolina as a profes- 
sional corporation without first obtaining from 
the board a certificate of registration as required 
by the General Statutes. The application should 
contain the name and address of this corporation 
and the name s of all the officers and sharehold- 
ers of the corporation. If the board finds that 
no disciplinaiy action is pending against any of 
the officers or shareholders, upon payment of a 
fifty dollar ($50.00) registration -fee, it shall issue 
a certificate of registration (PC Form No. 2) 
which will remain in effect until January 1 of the 
following year. 

Statutory Authority G.S. 55B-J0. 

.0302 ANNUAL RENEWAL 

Upon written application to the board on or 
before January 1 of each yoor, year and upon 
payment of a fee of twenty-five dollars ($25.00), 
an annual renewal certificate (PC Form No. 3) 
shall be issued by the board. Failure to comply 
will result in penalty as specified in the General 
Statutes. 

Statutory Authority G.S. 55B-I I. 

.0303 PENALTIES 

If a corporation does not apply for renewal of 
its certificate of registration within 30 days after 
the date of the expiration of such certificate, the 
certificate of registration shall be automatically 
suspended and may be reinstated within the cal- 
endar year upon the payment of the required re- 
newal fee plus a penalty often dollars ($10.00). 

Statutory Authority G.S. 55B-1 1 . 



SECTION .0400 - REVOCATION OR 
SUSPENSION OF LICENSE 

.0401 INITIATION OF PROCEEDINGS 
(REPEALED) 

Statutory Authority G.S. 90-202.8. 

.0402 HEARINGS 

(a) Before the board shall revoke or rescind 
suspend any license granted by it to any 
podiatrist, it will give te the podiatrist a written 
notice indicating the general nature of the 
charges, accusation, or complaints preferred 
against him and stating that the licensee will be 
given an opportunity to be heard concerning 
such charges or complaints at a tim e the date, 
hour and place stated in such notice, e* te- be 

I I i ■ ■ CO Suiflg ti v.tH Kir * It *t Kno f.i ■"! fi ."1 f Y\ -1 I I V-» ,-t I r\ -1 

mtTcrnTCT 1 1 jtl"vx xitj x i iv uuui *_i j 111 iu ^n mil i"Tttttt tr 

r»i ihli/' KAiiinn «^/^t 1 Q ."- e il-ion III /I ■ i I : .'- T r, -< m 4U.t r"l *"1 t l l 
I 7 T_1 1 7 II V 1 1 OH 1 I'lC, ITTTT IVJTTM I 1 1U1 1 ^) \J UU T J I 1 V 1 1 1 M I" UUIV 

ef the s e rvic e ef such notice upon such licensee, 
at- which he may- appoar personally ©f through 
counsel, may cross examine witnesses aft4 pros 
e+« evidence m bis own behalf. Provided, how- 
ever, the board may summarily suspend a license 
where the public health, safety or welfare requires 
emergency action as provided in G.S. 150B-3(c). 
The notice shall include a reference to the 
sections of the statutes and rules involved. The 
board shall hold a public hearing not less than 
15 days from the date of the service of such no- 
tice to such licens 



at which hearing he 



ma\ 



personally or through counsel cross-examine 
witnesses and present evidence ni Ins own behalf. 

(b) A podiatrist who is mentally incompetent 
shall be represented at such hearing and shall be 
served with notice as herein provided by and 
through a guardian ad litem appointed by the 
clerk of the court of the county in which the 
podiatrist has his /her residence. 

(c) Such The licensee or podiatrist may, if he 
desires, file written answers to the charges or 
complaints preferred against him within 30 days 
after the service of such notice, which answer 
shall become a part of the record but shall not 
constitute evidence in the case. 

Statutory Authority G.S. 90-202.8; 150B-38. 

.0403 SERVICE OF NOTICE 

Any notice required by tbis Rul e may be served 
either personally &f by- a» officer authorized by 
law- te- serve process, m by registered mail, return 
receipt requested, directed te- the licensee ©f ap- 
plicant at h+s last known addr e ss a* shown by the 
records e£ the board. If notice is served pep- 
sonally, it shall be deemed te- have been served 
at the ti»e when the officer delivers the notic e 
ef the p e rson addressed. Where notice is s e rv e d 



NORTH CAROLINA REGISTER 



3S0 



PROPOSED RULES 



by- registered mail, it ;. Hall be deemed te have 
been served e» the d*te born e by the return fe- 
ceipt showing delivery ef the notice te the ad- 
dressee ef refusal ef the addressee te acc e pt the 
notice the rules shall be given personally or bv 
certified mail, return receipt requested, directed 
to the licensee or applicant at his last known ad- 
dress as shown bv the records of the board. 
service cannot be accomplished either personally 
or bv ceilitied mail. it_ shall then be given as pro- 
vided in G.S. 1A. Rule 4 ( 



Statutory Authority G.S. 90-202.S; I50B-3S. 

.0404 PLACE OF HEARINGS 

I "pon written request ef the accused podiatrist, 
given te the secretary ef the board 50 day ;- after 
service ef the charger , ef complaints again st him. 
a hearing fef the purpose ef determining revoca 
toft- ef suspension ef hi* license '. hall be con 
ducted i» the county m which such podiatrist 
maintains his residence, ef at- the election ef the 
board. » af>y- county m- which the aet ef aets 
complained ef occurr e d, fe the absence ef such 
request, the hearing shall be held at a place des- 
ignated by- the board, ef as agreed upon by- the 
podiatrist aftd- the board. A hearing conducted 
bv the board shall be held in the location as 



provided by statute. 

Statutory Authority G.S. 90-202.8; l50B-38(e). 

.0405 TRIAL EXAMINER OR DEPOSITION 

(REPEALED) 
.0406 EVIDENCE ADMISSIBLE (REPEALED) 
.0407 FAILURE TO APPEAR (REPEALED) 

Statutory Authority G.S. 90-202.8. 



.0408 APPEAL 

A podiatrist whose license is revok e d ef 
pended by- the board stay- obtain a review ef Ae 
decision ef the board ift the Superior Court ef 
Wake County ef » the superior court m the 
county i» which the h e aring was held ef upon 
agreement ef the parties te the app e al m a«y- 
other sup e rior court ef the stat e , upon tiling with 
the secretary ef the board a written notice ef ap- 
peal- within 44 days after the date ef the senice 
ef the d e cision ef the board stating all exceptions 
taken te the d e cision ef the board and- indicating 
the court ift which the appeal is te be heard, who 
is aggrieved bv a final decision in a contested 
case, and who has exhausted all administrative 
remedies available may obtain judicial review o[ 
the decision of the board as provided bv statute. 



SECTION .0500 - CERTIFICATION OF 
PODIATRIC ASSISTANTS 

.0501 APPLICATION (REPEALED) 

.0502 EXAMINATION (REPEALED) 

.0503 CERTIFICATION (REPEALED) 

.0504 ANNUAL RENEWAL (REPEALED) 

Statutory Authority G.S. 90-202.6. 

SECTION .0600 - FORMS USED BY THE 
BOARD 

.0601 APPLICATION FOR EXAMINATION 

The application for examination (BPE Form 
No.l) will be used by all applicants who wish to 
take the examination for licensure. The form 
may be modified from time to time by the board. 
It shall require the applicant to furnish the board 
with detailed information regarding his education 
and personal, moral aed family background. 
character. The form may be obtained from the 
office of the secretary' treasurer. Ofr Xr Pr Costin. 
fer 1230 Medical Center Drive, Wilmington. 
North Carolina, 28101. Secretary - at Post Office 
Box 1088, Raleigh. North Carolina 27602. 



2* Statutory Authority G.S. 90-202.5. 

.0602 CERTIFICATE OF LICENSURE 

The licensure certificate (BPE Form No, 3 3) 
will be the official license to practice podiatry in 
the State of North Carolina. It shall be issued 
by the board to all candidates who successfuUy 
complete the examination given by the board. 
The license will be numbered and it shall be 
signed bv all three members of the board. 



Statutory Authority 
150B-45. 



G.S. 90-202.8; 150B-43 to 



Statutory Authority G.S. 90-202.6. 

.0603 APPLICATION FOR RENEWAL 

The application for renewal of license (BPE 
Form No. 4 4 ) will be used to annually apply 
for renewal of the license to practice. rf-he 
secretary tr e asur e r ef the board shall matl this 
form te each license holder at the last known 
addr e ss, i» thte month ef May ef eaeh- year. The 
license holder must complete the form aad return 
itr along with the annual ren e wal fee te the 
secretary treasurer prior te 4-t±ly- 4- ef each year. 
The form will require the license holder to inform 
the board of his current office address, his status 
in regard to practice (active, retired, etc.). and 
such other information as the board may require 
to maintain accurate records on the status of the 
profession within the state. 

Statutory Authority G.S. 90-202. 10. 



3S1 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



.0604 CERTIFICATE OF CONTINUING 
EDUCATION 

The secretary treasurer may provide each li- 
cense holder with a form (BPE Form No. 4 5 ) 
used to certify that the licensee has met the re- 
quirements of the continuing education Clauoo 
ef the requirements as stated in General Statutes. 

Statutory Authority G.S. 90-202.11. 

.0605 CERTIFICATION FOR ESTABLISHING 
A PROFESSIONAL CORPORATION 

Prior to being registered with the Secretary of 
State of the State of North Carolina, each pro- 
fessional corporation shall obtain from the sec- 
retary troar . uror of the board a certification 
certificate (PC Form No. 2) that each and every 
shareholder of the proposed corporation is duly 
licensed to practice podiatry in the State of North 
Carolina. 

Statutory Authority G.S. 55B-10. 

.0606 CERTIFICATE OF REGISTRATION 
OF PROFESSIONAL CORPORATION 

Every professional corporation shall annually 
(prior to F e b. 4- February 1st of each year) apply 
to the board for a certificate of registration. 
Whefl the board determines that He disciplinary 
action is ponding against awy e4~ the officers e* 
shareholders ef the corporation aftd 4 ri- appears 
that- the corporation w+H- be conducted m com 
plianco with the statutes a«4 the rules e£ the 
board, aftd upon payment ef a feer not te OKccod 
fifty dollars ($50.00) fef initial registration, a»4 
net to exceed twenty five dollars ($25.00) fof 
e ach renewal; the secretary treasurer of the board 
w4U issue te- the professional corporation a eef- 
tificato ©f registration fi^C- Form No. 3). 

Statutory Authority G.S. 55B-I I. 

.0607 APPLICATION FOR EXAMINATION: 

PODIATRIC ASSISTANTS 

(REPEALED) 
.0608 CERTIFICATE OF REGISTRATION: 

PODIATRIC ASSISTANTS 

(REPEALED) 
.0609 ANNUAL RENEWAL: PODIATRIC 

ASSISTANTS (REPEALED) 

Statutory Authority G.S. 90-202.4. 

.0610 APPLICATION FOR EXAMINATION 
FOR PODIATRIST LICENSED IN 
OTHER STATES (RECIPROCITY) 

The application for examination for those al- 
ready licensed in other states to practice podiatric 
medicine (BPE Form No. 2) will be used by ap- 



plicants who request such consideration. The 
requirements shall be the same as for the appli- 
cant mentioned in Rule .0601 of this Section plus 
any other that the Board of Podiatry Examiners 
may deem necessary and in keeping with the 
General Statutes. Application forms may be 
obtained from the office of the secretary of the 
board. 

Statutory Authority G.S. 90-202.7. 

SECTION .0700 - PETITIONS FOR RULES 

.0701 PETITION FOR RULEMAKING 
HEARINGS 

Any person wishing to submit a petition re- 
questing the adoption, amendment e* repeal e£ 
a H*le by the board shall address a petition to: 
Board of Podiatry Examiners, 1230 Medical 
Center Drive, Wilmington, North Carolina. 
28101, ATTENTION: ~ft- X, Ft Cootin, 4*^ 
Secretary Treasurer. Post Office Box 10SS, 
R aleigh. North Carolina 276(12. The container 
caption of the petition should clearly bear the 
notation: RULEMAKING PETITION RE and 
then the subject area. 

Statutory Authority G.S. 1 SOB- 16. 

.0702 CONTENTS OF PETITION 

The petition should include the following in- 
formation: 

(1) an indication of the subject area to which 
the petition is directed. For example: "This 
» a petition is to hold a rulemaking hearing 
to amend Rule .0000"; pertaining te Ad- 
ministrative Procedur e Aet filing require 
mento; 

(2) either a draft of the proposed rule or a 
summary of its contents; 

(3) reason & for the proposal; 

(4) the effect on existing rules or orders; 

(5) any data supporting the proposal; 

(6) effect of the proposed rule on existing 
practices in the area involved including cost 
factors; 

(7) names of those most likely to be affected 
by the proposed rule with addresses if rea- 
sonably known; 

(8) name(s) and address(es) of petitioner(s). 

Statutory Authority G.S. I50B-I6. 

.0703 DISPOSITION OF PETITIONS 

(a) The board will determine whether the 
public interest will be served by granting the re- 
quest. Prior to making this determination, the 
board may request additional information from 
the petitioner(s); it may contact interested per- 



NORTH CAROLINA REGISTER 



382 



PROPOSED RULES 



sons or persons likely to be affected by the pro- 
posed rule and request comments; it may use any 
other appropriate method for obtaining informa- 
tion on which to base its determination. It will 
consider ah »f the contents of the petition sub- 
mitted plus any other information obtained by 
the means described herein. 

(b) The board will make a determination for 
the institution of rulemaking proceedings or for 
the denial of the petition a* the ease may ber 
provided bv G.S. 150B-16. 

fe-) Within 444 days ef submission t*f the peti 
tion. a final decision wth- be rendered by- the 
board. U the decision is te- deny the petition, the 
board w+h notify the petitioner m writing, stating 
the reasons therefor. U the decision js te> grant 
the petition, the board, within 4# days t4 sub 
mi 'i-i ion, w+h initiate a rulemaking notic e , as pro 
vided m these rules. 

Statutory Authority G.S. 1 SOB- 16. 

SECTION .0800 - NOTICE OF RULEMAKING 
HEARINGS 

.0X01 TIMING OF NOTICE 

(REPEALED) 
.0X02 NOTICE MAILING LIST 

(REPEALED) 
.0803 ADDITIONAL INFORMATION 

(REPEALED) 



Statutory Authority G.S. 

150B-12(a)(2). 



I50B-/1 



All requests for declaratory rulings shall be 
written and mailed to the Board of Podiatry Ex- 
aminers, 1230 Medical ("enter Drive, 
Wilmington, North Carolina, 2SJ01. Post Office 
Box 1088, Raleigh, North Carolina 27602, At- 
tention: Secretary. The container of the request 
should bear the notation: REQUEST TOR- 
DECI.ARATORY RULING. The request 
must include the following information: 

(1) name and address of petitioner; 

(2) statute or rule to which petition relates; 

(3) concise statement of the manner in which 
petitioner is aggrieved by the rule or statute 
or its potential application to him; 

(4) a statement of whether an oral hearing is 
desired, and if so, the reason therefor. 

Statutory Authority G.S. 1 SOB- 17. 

.1005 DEFINITION 

For purposes of Rule .1004 of this Section, a 
declaratory Riling shall be deemed to be "in 
effect": until the statute or rule interpreted by 
the declaratory ruling is amended, altered or re- 
pealed; until the board changes the declaratory 
ruling prospectively for good reasons; or until 
any court alters or sets aside the ruling, m ht+- 
gation between the Board b+~ Podiatry Examiners 
at+4 the party requesting the rule; Bf until awy- 
court e+ the Appellate Division e£ the G e neral 
Court trf Justice shall construe the statute h* ft*le 
which is the subject e4" the declaratory ruling m 
a mann e r plainly irreconcilable - with the 
declaratory ruling. 



SECTION .0900 - RULEMAKING HEARINGS 

.0901 REQUEST TO PARTICIPATE 

(REPEALED) 
.0902 CONTENTS OF REQUEST: GENERAL 

TIME LIMITATIONS (REPEALED) 
.0903 RECEIPT OF REQUEST: SPECIFIC 

TIME LIMITS (REPEALED) 
.0904 WRITTEN SUBMISSIONS 

(REPEALED) 
.0905 PRESIDING OFFICER: POWERS 

AND DUTIES (REPEALED) 
.0906 STATEMENT OF REASONS FOR 

DECISION (REPEALED) 
.0907 RECORD OF PROCEEDINGS 

(REPEALED) 
.0908 EMERGENCY RULES 

(REPEALED) 

Statutory- Authority G.S. /SOB-/ 2; I SOB- 1 3. 
SECTION .1000 - DECLARATORY RULINGS 

.1002 SI BMISSION OF REQUEST FOR 
Rl LING 



Statutory Authority G.S. I SOB- 17. 

SECTION .1 100 - ADMINISTRATIVE HEARING 
PROCEDURES 

.1 101 RIGHT TO HEARING (REPEALED) 

.1 102 REQUEST FOR HEARING (REPEALED) 

.1103 GRAN LING OR DENYING HEARING 

REQUESTS (REPEALED) 
.1 104 NOTICE OF HEARING (REPEALED) 
.1 105 WHO SHALL HEAR CONTESTED 

CASES (REPEALED) 
.1 106 PETITION FOR INTERVENTION 

(REPEALED) 
.1 107 TYPES OF INTERVENTION 

(REPEALED) 

Statutory Authority G.S. IA-1, Rule. 24; 
150B-2(2): 150B-3S; I50B-3S(f); 150B-40. 

SECTION .1200 - ADMINISTRATIVE 

HEARINGS: DECISIONS: RELATED 

RIGHTS AND PROCEDURES 

.1 201 FAILURE TO APPEAR (REPEALED) 



383 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



Statutory Authority G.S. I50B-42 to I50B-45. 

.1203 SUBPOENAS 

The board is hereby authorized to issue 
subpoenas upon its own motion ef upon a writ 
tea- request. When such written requ e st is mado 
by a party m a contested oaoo, the board shall is- 
sue subpoenas forthwith requiring the attendance 
aftd testimony ef witnesses aftd the production 
ef- evidence including books, records, corro 
spondonc e , and documents ift their possession 
e* under their control. Q» written request, the 
board shall revoke a supboena tfr upon a hearing 
the board finds that the evidence, the production 
ef which is required, does set relat e te a matt e r 

I .'.• nv , tj i it l i if ^rrcTTTmrr jjvtv -' rrcrt cjudoi il'v »» j i 1 1 

sulTiciont particularity the evidence the pfe- 
duction of wliich is required, e* if f-e* aay other 
reason sufficient » law the subpoena is invalid. 
Witness fees shall he paid by the party requesting 
the subpoena te- subpoenaed witnesses » ae- 
cordanco with G.S. 7 A 311. as provided in G.S. 
150B-39. 

Statutory Authority G.S. J50B-39. 

.1204 FINAL DECISIONS IN 

ADMINISTRATIVE HEARINGS 

The board w-ih issue the shall make a written 
final decision or order in all contested cases as 
provided bv G.S. 15UB-42. Its decision is the 
prerequisite "final decision" fof the right te- judi 
eial review. 

Statutory Authority G.S. 150B-42. 

SECTION .1300 - NOMINATIONS FOR 

PODIATRISTS MEMBERS OF THE BOARD 

OF PODIATRY EXAMINERS: BOARD OF 

PODIATRY EXAMINERS CONSTITUTING 

A BOARD OF PODIATRY ELECTIONS: 

PROCEDURES FOR HOLDING AN ELECTION 

.1301 BOARD OF PODIATRY ELECTIONS 

The Board of Podiatry Examiners is hereby 
constituted a Board of Podiatry Elections for the 
purpose of submitting as vacancies on the board 
occur occur, nominees to the Governor for ap- 
pointment as required by statute. Even 
podiatrist with a current North Carolina license 
residing in this state shall be eligible to vote in 
all elections subject to the rules and procedures 
set out in Rule .1302. 

Statutory Authority G.S. 90-202.4. 

.1302 RULES AND PROCEDURES FOR 
CONDUCTING EUECTIONS 



The rules and procedures to be followed in the 
conducting of elections to fill podiatrists' posi- 
tions on the Board of Podiatry Examiners are as 
set forth in this Rule: 

(1) At least 30 days prior to the expiration of 
the term of the board member, written no- 
tice of the holding of an election will be sent 
to every podiatrist with a current North 
Carolina license residing in this state using a 
mailing address as contained in the board's 
official records. 

(2) The notice shall have with it a list of three 
nominees proposed by the Board of 
Podiatry Examiners for the board member 
position to be filled. 

(3) The election or voting for the board mem- 
ber position will take place during the as- 

I I UUT I 11L L I ! 1 1 JL, \J 1 1 1 l\J . * \J I 1 1 1 V-T1.I \J LAI TTX 1 V'U III L 1 T 

nrtTCTT HI 1 \ J CTTTTT^^TTT rTTCTTTTTz; ITT J UI1U \-JI m. ra 

y e ar, annually prior to July 1 of each year. 
Additional nominations from the floor may 
be r e ceived from a«y licensed podiatrist m 
North Carolina » attendance e» the 4etf ef 
the election fof consideration ef a»y licensed 
podiatrist residing m North Carolina whe- is 

« «-i -iH.in,|.in^n ,— i r-t +Jt^ iLnr rvl tl^^ tU i^ ' tl im ' I T 1 I I 

III LI I I s^T^^TC^^T^^C* ^^^T ^T^^^ ^^t^^T ^^X ^^^^^ li^v ii v.' * i j CTTT^X 

who has agreed m advance that his name 
may he submitted, aftd who is otherwise el- 
igible te be eleetedr Additional nominations 

in.i\ he r-i.t.vJ Iroin llu- lloor or as write -in 
nominations on a ballot and may be re- 
ceived from any licensed podiatrist residing 



in North Carolina. 



(4. 



(?) 



Ballots will be prepared by the Board of 
Podiatry Elections and passed e«t distrib- 
uted or mailed to all North Carolina licensed 
podiatrists who reside in North Carolina a»4 
who a*e present e» the day- ef the election. 
Any podiatrist who is eligible to vote and 
who wishes to vote and who will not be in 
attendance at the annual mooting ef the so- 
ciety- election meeting may request a written 
ballot from the secretary treasurer secretary 
or treasurer and shall return the ballot prior 
to the annual election meeting. Each voting 
podiatrist will mark his e* he* his her ballot 
and cast his e* he* his>her ballot in the ballot 
box or mail the ballot to the board or other 
device provided by the board for this pur- 
pose. A-r+y votes aet placed m the ballot 
be* Bf other such designated device wall be 
void a«4 w-iH- not- be counted. 

The s e cr e tary treasurer secretary or treas- 
urer or such other member of the board as 
may be designated by the president of the 
Board of Podiatry Examiners solely will 
conduct a tally of the ballots and submit to 
the president of the board the names receiv- 



NORTH CAROLINA REGISTER 



3S4 



PROPOSED RULES 



ing the highest number of votes and their 
respective percentage of votes. 

(6) The president of the board will in tum 
submit the number t*f nam e s to the Gover- 
nor a* required by statute which who re- 
ceived the highest number of votes and their 
respective percentage of votes with bi- 
ographical data as te each e? S» names on 
the two podiatrists being submitted. 

(7) It will not be necessary for an individual 
podiatrist to receive a majority of votes of 
those North Carolina licensed podiatrists 
participating in the election. The secr e tary 
treasurer secretary or treasurer or such other 
member of the board designated by the 
president of the board r e cords tk* three 

^^^^^J^^^^T ^^^^^^^^^^^^^^1 L^^^± [ , 1 i 1 1 , t , t ^^^^^^^^^^^^£ ^^i T ■ it . I. 

! I V 1 1 ! IV ' I VWI f 1 1 1 £. tTTv 111 Z~.l l\- _' I IIl.ilIll'V.1 \J 1 T \) I V. ' .' . 

shall record the two names receiving the 



percentage. His report te tb© president ef 
tlw board will net b<» as te- Ae number ef 
votes ouch individual received, b«t simply 
those r e c e iving Ae highest number ef votes 
m alphabetical order. The voting podiatrists 
will be notified of the results of the election. 

(8) To be eligible for board membership, a 
podiatrist must be a licensed podiatrist in 
North Carolina at least for the period of 
time prescribed by statute. A vote for any 
licensed podiatrist not holding a North 
Carolina license for that minimum period 
will not be counted. 

{fy : fbe results ef Ae balloting will be confi 
d e ntial between Ae president e£ the board 
a*H* such persons designated by the president 
ei the board to conduct the election. 



highest number of votes and their respective Statutory Authority G.S. 90-202.4. 



3S5 



NORTH CAROLINA REGISTER 



FINAL RULES 



LJ pon request from the adopting agency, the 
text of rules will be published in this section. 

W hen the text of any adopted rule is iden- 
tical to the text of that as proposed, adoption 
of the rule will be noted in the "List of Rules 
Affected" and the text of the adopted rule 
will not be republished. 

/x dopted rules filed by the Departments of 
Correction, Revenue and Transportation are 
published in this section. These departments 
are not subject to the provisions ofG.S. 150B. 
Article 2 requiring publication of proposed 
rules. 



TITLE 17 - DEPARTMENT OF REVENUE 



CHAPTER 7 - SALES AND USE TAX 



SUBCHAPTER 7B 



STATE SALES AND USE 
TAX 



SECTION .0200 - GENERAL APPLICATION OF 

LAW TO MANUFACTURING AND INDUSTRIAL 

PROCESSING 

.0206 SALES BY MANUFACTURERS 

(a) Sales of tangible personal property by ma- 
nufacturers to registered merchants in this state 
for the purpose of resale are not subject to sales 
or use tax provided the transactions are sup- 
ported by properly executed Resident and Non- 
resident Retail or Wholesale Merchant's 
Certificate of Resale, Form E-590. 

(b) Sales of tangible personal property by ma- 
nufacturers to nonresident retail or wholesale 
merchants for the purpose of resale in another 
state are not subject to sales or use tax when de- 
livered to such purchasers in this state provided 
the nonresident retail or wholesale merchant is 
registered for sales and use tax purposes in a 
taxing jurisdiction outside this state and the 
transactions are supported by properly executed 
Resident and Nonresident Retail or Wholesale 
Merchant's Certificates of Resale, Form E-590. 

(c) Sales of tangible personal property by ma- 
nufacturers who deliver the property to purchas- 
ers outside this state or who deliver the property 
to a common carrier or to the mails for delivery 
to the purchaser at a point outside this state are 
not subject to sales or use tax. Such sales must 
be supported by the prescribed records. 

(d) Sales of tangible personal property by ma- 
nufacturers to nonregistered merchants in this 
state and sales to nonregistered nonresident mer- 



chants who accept delivery of the property in this 
state are subject to the sales or use tax. 

(e) Manufacturers purchasing tangible personal 
property and reselling it in its same form to reg- 
istered merchants for resale are liable for an an- 
nual wholesale license. Manufacturers 
maintaining a warehouse or other place of dis- 
tribution in this state, separate and apart from the 
place of manufacture, for the sale or distribution 
of their manufactured products to registered 
merchants for the purpose of resale are also liable 
for an annual wholesale license. Manufacturers 
who are liable for the wholesale license are also 
liable for a merchants certificate of registration 
license. 

(f) Manufacturers who only make sales to reg- 
istered merchants for resale or sales which are 
otherwise exempt from the tax are not required 
to report such sales to the department; however, 
manufacturers making taxable retail sales or pur- 
chases subject to the use tax must register with 
the department and file sales and use tax reports 
reflecting such taxable sales or purchases and pay 
the applicable tax due thereon. 

(g) A manufacturer becomes liable for tax on 
its sales of tangible personal property when it 
sells directly to users and consumers, including 
employees. Such sales include: 

(1) sales of bottled drinks by a bottling plant 
to users and consumers, including em- 
ployees; 

(2) sales to employees or other persons of 
food products, meals and other prepared 
foods by an industrial plant or other bu- 
siness of any kind through a commissary, 
concession stand, cafeteria, lunch stand 
or other similar places; 

(3) sales of fuel, hosiery, furniture or any other 
kind of taxable tangible personal property 
to employees or any other users or con- 
sumers. 

(h) A manufacturer's casual or occasional sale 
of its worn out, obsolete or surplus machinery, 
accessories and similar items are not subject to 
the tax. 

History Note: Statutory Authority G.S. 
105-164.4; 105-164.6; 105-164.13; 
105-164.28; 105-262; 
Effi February 1, 1976; 
Amended Effi August 1, 1988; 
November 1, 1982; February 8, 1981; 
March 15. 1980. 

SECTION .0400 - SPECIFIC INDUSTRIES 

.0406 OTHER MILLS AND PROCESSORS 

Sales of production machinery, and parts and 
accessories thereto, to sawmills, lumber mills, 



NORTH CAROLINA REGISTER 



386 



FINAL RULES 



millwork plants, flour mills, grist mills, feed mills, 
fish canneries, fertilizer plants, cotton gins, food 
canneries, photo finishers, printers, ready-mixed 
concrete plants and asphalt plants (but not con- 
crete or asphalt contractors), poultry processors, 
wood preserving plants, brick manufacturers, ce- 
ment, cinder and clinker block manufacturers, 
paper mills, tanneries, pottery makers, novelty 
manufacturers, and any other producer for use in 
the production process, as the term 
"production" is defined in 17 NCAC 7B .0202(a) 
(1), to fabricate, process or manufacture articles 
of tangible personal property for sale are subject 
to a one percent rate of tax with a maximum tax 
of eighty dollars ($80.00) per article. 

Note: (1) Bulldozers or other equipment sold 
to sawmill operators for the purpose of open- 
ing or maintaining entries to timber lands are 
not mill machinery and such sales are subject 
to the three percent sales or use tax. 
Note: (2) Wedges, cant hooks, log binders, 
log jacks and log chains sold to sawmill and 
lumber mill operators for use in cutting timber 
are classified as mill machinery or parts and 
accessories for such machinery, and such sales 
are subject to the one percent sales or use tax. 
Note: (3) Sales to wood products manufac- 
turers or producers and their contractors or 
subcontractors of log-skidders, log-carts, tree- 
shears, feller-bunchers, grapple skidders, 
winches, chainsaws, clippers, tractors, axes and 
mallets for use in cutting and transporting 
timber on lands owned by them or on lands 
where timber rights have been acquired for 
timber to be manufactured into wood products 
or for sale either directly or indirectly to wood 
products manufacturers are classified as mill 
machinery and subject to the one percent rate 
of tax with a maximum tax of eighty dollars 
($80.00) per article. Sales of such machinery 
or equipment to employees of wood products 
manufacturers, producers and logging contrac- 
tors or subcontractors are subject to the three 
percent state rate of tax. Motor vehicles li- 
censed for use on the streets and highways of 
this State are subject to the two percent rate 
of tax with a maximum tax of three hundred 
dollars ($300.00) per vehicle including all ac- 
cessories attached thereto at the time of deliv- 
er.' to the purchaser when sold to 
manufacturers, producers and contractors or 
subcontractors. 

Note: (4) Dynamite sold to fertilizer man- 
ufacturers for use in blasting mounds of ferti- 
lizer which has been stored for aging processes 
is not classified as mill machinery or accesso- 
ries thereto, and such sales are subject to the 
three percent sales or use tax. 



Note: (5) Propylene glycol sold to poultry 
processors for use as a refrigerant in the man- 
ufacturing process is classified as an accessory 
to mill machinery and such sales are subject to 
the one percent sales or use tax. 

History Note: Statutory Authority G.S. 
105-164.4; 105-164.6; 105-164.13; 105-262; 
Eff February 1, 1976; 
Amended Eff. August 1, 1988; 
June 1, 1984; February 8, 1981; 
March 15, 1980. 

SECTION .1 100 - SALES OF BULK TOBACCO 
BARNS: FARM MACHINES AND MACHINERY 

.1105 ANIMAL CLIPPERS 

Sales of animal clippers and parts therefor to li- 
vestock farmers for use in the production of li- 
vestock are subject to the one percent rate of tax 
prior to September 1, 1987. Effective September 
1, 1987, sales of animal clippers and parts there- 
for to livestock farmers for use in the production 
of livestock are exempt from tax when such clip- 
pers are placed or installed in or affixed to any 
enclosure or structure used for commercial pur- 
poses in housing, raising or feeding of livestock. 

History Note: Statutory Authority G.S. 
105-164.4; 105-164.6; 105-262; 
Eff. February I, 1976; 
Amended Eff August I, 1988; July 5, 1980. 

.1108 EGG COOLING CABINETS 

Sales of egg cooling cabinets to be placed or in- 
stalled in or affixed to any enclosure or structure 
specifically designed, constructed and used for 
commercial purposes for housing, raising or 
feeding poultry are exempt from sales or use tax. 

History Note: Statutory Authority G.S. 
105-164.4; 105-164.6; 105-262; 
Eff February 1. 1976; 
Amended Eff August I, 1988. 

.1109 FEED MILLS 

Sales of feed mills to be placed or installed in 
or affixed to any enclosure or structure specif- 
ically designed, constructed and used for com- 
mercial purposes for housing, raising or feeding 
swine, livestock or poultry are exempt from sales 
or use tax. 

History Note: Statutory Authority G.S. 
105-164.4; 105-164.6; 105-262; 
Eff. February 1, 1976; 
Amended Eff August 1, 1988. 

.1110 COOLING FANS 



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NORTH CAROLINA REGISTER 



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Sales of cooling fans to be placed or installed in 
or affixed to any enclosure or structure specif- 
ically designed, constructed and used for com- 
mercial purposes for housing, raising or feeding 
swine, livestock or poultry are exempt from sales 
or use tax. 

History Note: Statutory Authority G.S. 
105-164.4; 105-164.6; 105-262; 
Eff. February 1, 1976; 
Amended Eff. August 1, 19SS; July 5, 19S0. 

.1112 SILO LNLOADERS: BARN CLEANERS 

Sales of silo unloaders and mechanical barn 
cleaners to be placed or installed in or affixed to 
any enclosure or structure specifically designed, 
constructed and used for commercial purposes 
for housing, raising or feeding swine, livestock 
or poultry are exempt from sales or use tax. 

History Note; Statutory Authority G.S. 
105-164.4; 105-164.6; 105-262; 
Eff. February 1, 1976; 
Amended Eff August 1, 1988. 

.1 113 MACHINERY STORAGE EQUIPMENT 

Sales to dairy farmers of equipment used to 
store or hold machinery which is not in use are 
subject to the three percent rate of tax unless the 
equipment is an integral part of an item which is 
properly classified as farm machinery. Effective 
September 1, 1987, sales of such commercially 
manufactured swine, livestock and poultry 
equipment and parts and accessories therefor 
placed or installed in or affixed to facilities, en- 
closures or structures specifically designed, con- 
structed and used for housing, raising or feeding 
of swine, livestock or poultry are exempt from 
sales tax. 

History Note: Statutory Authority G.S. 
105-164.4; 105-164.6; 105-262; 
Eff. February 1, 1976; 
Amended Eff August 1, 1988. 

.1114 SCALES 

Sales of scales to to be placed or installed in or 
affixed to any enclosure or structure specifically 
designed, constructed and used for commercial 
purposes for housing, raising or feeding swine, 
livestock or poultry' are exempt from sales or use 
tax. 

History Note: Statutory Authority G.S. 
105-164.4; 105-164.6; 105-262; 
Eff. February 1, 1976; 
Amended Eff August I, 1988. 



SECTION .1200 - HOTELS: MOTELS: TOURIST 
CAMPS AND TOLRIST CABINS 

.1201 TAXABILITY OF GROSS RECEIPTS 

(a) All persons engaged in the business of op- 
erating hotels, motels, inns, tourist homes, tourist 
camps, and similar type businesses and, effective 
August 1, 1983, all persons who rent private res- 
idences, condominiums or cottages to transients 
for consideration are deemed to be retailers and 
must register with the department and collect and 
remit the tax herein required to be paid. The 
term "persons who rent to transients," as used in 
this Rule, includes: 

(1) owners of private residences, cottages, 
apartments, condominiums, (time share 
and interval ownership properties as here- 
inafter described) and similar places; and 

(2) real estate agents, including "real estate 
brokers" as defined in G.S. 93A-2, who 
rent any such accommodations to tran- 
sients on behalf of the owners. 

When the rental agent is liable for the tax im- 
posed, the owner is not liable. If the owner rents 
such accommodations to transients, the owner is 
liable for the tax and must register with this de- 
partment for sales and use tax purposes. 

(b) Gross receipts derived from the rental of 
any room or rooms, lodgings or accommodations 
furnished by any hotel, motel, inn, tourist camp, 
tourist cabin and any private residence, condo- 
minium, (time share and interval ownership pro- 
perties), cottage or any other place in which 
rooms, lodgings or accommodations are fur- 
nished to transients for a consideration are sub- 
ject to the three percent tax, except as set forth 
in Paragraphs (c) and (d) of this Rule or as oth- 
erwise provided by the statute. 

(c) Receipts derived from the rental of any 
room, lodging or accommodation to the same 
person for a period of 90 continuous days or 
more are not subject to the tax, and the tax col- 
lected from any person prior to the accumulation 
of such 90 continuous days of occupancy by said 
person shall be refunded to such person by the 
retailer collecting the same. A retailer actually 
making any such refund of tax which he has paid 
to the department shall be entitled to claim credit 
for the tax so refunded on a subsequent return 
filed by him with the department. 

(d) Receipts derived from an occasional or 
isolated rental of a private residence or cottage 
by the owner for less than a total of 1 5 days in a 
calendar year are not subject to sales tax. The 
14 days exclusion is applicable only to those pri- 
vate residences and cottages which are not made 
available for rental to transients. If the private 
residence or cottage is generally or routinely 
made available by the owner for rental to tran- 



NORTH CAROLINA REGISTER 



388 



FINAL RULES 



sients, the less than 15 days exclusions is not ap- 
plicable to such rentals and all receipts therefrom 
are taxable without regard to the aforementioned 
period. When private residences and cottages are 
listed with real estate agents, including "real es- 
tate brokers" as defined in G.S. 93A-2, for rental 
to transients, such private residences and cottages 
are deemed to be generally available for rental to 
transients and the less than 15 days exclusion is 
not applicable to any receipts from such rentals 
to transients. 

(e) Sales of time share or interval ownership 
property which can be transferred by estate, gift 
or devise pursuant to deeds or documents under 
which the owners have a fixed and continuing 
nght to occupy such units during a specified pe- 
riod of time in the same manner as a person who 
owns or is buying a private residence or cottage 
are considered to be sales of real property not 
subject to sales or use tax. \\ nen owners of in- 
terval ownership and time share property do not 
occupy the property but rent it to transients or 
place the property in the hands of a rental agent, 
including "real estate brokers" as defined in G.S. 
93A-2, for rental on their behalf to transients, 
such receipts are subject to sales tax and the less 
than 15 days exclusion is not applicable to any 
receipts from such rentals as explained in Para- 
graph (d) of this Rule. 

History Note: Statutory Authority G.S. 
105-164.4; 105-262; 
Eff. February I, 19~6; 
Amended Eff. August 1, 19SS; July 1, 1984; 
January 3, 1984. 

SECTION .1400 - SALES OF MEDICINES: 
DRUGS AND MEDICAL SUPPLIES 

.1401 PRESCRIPTION MEDICINES AND 
DRLGS 

Sales of drugs or medicines on written pre- 
scription of a physician or dentist and, effective 
August 1, 1988, insulin whether or not sold on 
prescription, are exempt from sales or use tax. 
Sales of drugs or medicines pursuant to a physi- 
cian's or dentist's telephone (oral) prescription 
are exempt from sales or use tax provided the 
prescription is reduced to writing, signed by the 
pharmacist and filed in the same manner as an 
original written prescription. The terms medi- 
cines and drugs shall mean all medicines in the 
generally accepted sense of the term and also in- 
clude tonics for internal use, vitamins, ointments, 
liniments, antiseptics, anaesthetics, serums, and 
other remedies having preventive and curative 
properties in medical treatment. Medicines or 
drugs sold pursuant to the refilling of a physi- 
cian's or dentist's prescription are likewise ex- 



empt from the tax. Vendors making sales of 
medicines or drugs pursuant to physicians' or 
dentists' prescriptions or in refilling the same 
must keep sales records which will clearly segre- 
gate such prescription sales. All original pre- 
scriptions must be filed and kept available for 
inspection by the secretary or his authorized 
agent. When a sale is made to refill a pre- 
scription, the seller's records must carry the 
number of the original prescription so refilled in 
order that reference to the original can easily be 
made. 

History Note: Statutory Authority G.S. 
105-164.13; 105-262; 
Eff. February 1, 1976; 
Amended Eff. August I. 19SS. 

.1402 MEDICINES: SALES TO PHYSICIANS 

Physicians, dentists and hospitals are considered 
to be the users or consumers of medicines and 
drugs which they purchase for use in administer- 
ing treatment to their patients; therefore, sales 
thereof to physicians, dentists and hospitals for 
such use are subject to the three percent sales or 
use tax, and this is true notwithstanding such 
medicines and drugs may be of the type usually 
sold only on the prescription of a physician or 
dentist. Effective August 1, 1988, sales of insulin 
are exempt from sales or use tax whether or not 
sold on prescription. If a physician or dentist 
should, in fact, make outright sales of medicines 
or drugs to his patients or to other consumer 
customers, such sales are exempt from sales or 
use tax provided such medicines or drugs are sold 
on written prescription of the physician or den- 
tist, or another physician or dentist, and a record 
is made of each such sale and kept, along with 
the written prescription, as a part of the seller's 
permanent records. If a hospital maintains a 
pharmacy from which sales of drugs and medi- 
cines are made to individuals or to patients for 
their use after they leave the hospital, such sales 
are exempt from tax provided they are made on 
written prescription of a physician or dentist and 
a record of the sale and the prescription is kept 
in the manner described in 17 NCAC 7B .1401. 
An entry on a patient's medical record card or 
chart of medicines or drugs for such patient does 
not meet the requirements of a written pre- 
scription. Physicians, dentists and hospitals 
making sales of medicines and drugs, as set forth 
above, may purchase the medicines and drugs 
which they will resell or use in administering 
treatment to their patients without payment of 
tax to their vendors if the physician, dentist or 
hospital making the purchase has registered with 
the Department of Revenue for sales and use tax 
purposes and furnished his vendor properly exe- 



3S9 



NORTH CAROLINA REGISTER 



FINAL RULES 



cuted certificates of resale, Form E-590. In such 
cases, the physicians, dentists or hospitals be- 
come liable for remitting the three percent rate 
of tax directly to this department on the cost 
price of the medicines and drugs which they use 
in administering treatment to their patients, and 
the medicines and drugs sold on written pre- 
scription for subsequent use by the patient will 
be exempt from tax. 

History Note: Statutory Authority G.S. 
1 05-1 '64.4; 105-164.6; 105-262; 
Eff. February 1, 1976; 
Amended Eff August 1, 19SS. 

.1403 NONPRESCRIPTION MEDICINES AND 
DRUGS 

Sales of medicines or drugs, other than insulin, 
to users or consumers, except when the sales are 
made pursuant to a prescription of a physician 
or dentist or as a refill of a written prescription, 
as referred to in 17 NCAC 7B .1401, are subject 
to the three percent sales or use tax. 

History Note: Statutory Authority G.S. 
105-164.4; 105-164.6; 105-262; 
Eff. February 1, 1976; 
Amended Eff. August 1, 19SS. 

.1405 INSULIN 

Prior to August 1, 1988, sales of insulin on 
written prescriptions of a physician or a tele- 
phone prescription of a physician which has been 
reduced to writing are exempt from sales tax and 
refills of such prescriptions are exempt from sales 
tax provided a written record of each refill is 
maintained with the refill date, prescription 
number and price. Effective August 1, 1988, sa- 
les of insulin are exempt from sales and use tax 
whether or not sold on a written prescription. 

History Note: Statutory Authority G.S. 
105- 1 64. 13; 105-262; 
Eff. February 1, 1976; 
Amended Eff. August 1, 19SS. 

SECTION .1700 - SALES TO OR BY THE STATE: 

COUNTIES: CITIES: AND OTHER POLITICAL 

SUBDIVISIONS 

.1705 HOUSING AUTHORITIES 

Sales of taxable tangible personal property to 
housing authorities created and existing under 
Chapter 1 57 of the North Carolina General Sta- 
tutes for use in carrying on their activities are 
subject to the three percent state and any appli- 
cable local government sales or use tax. 

History Note: Statutory Authority G.S. 
105-/64.4; 105-164.6; 105-262; 



Eff. February 1, 1976; 
Amended Eff. August 1 , 



1988; March 1, 1984. 



SECTION .2900 - VENDING MACHINES 

.2903 EXCLUSION OF TAX FROM RECEIPTS 

Operators of vending machines making sales of 
taxable tangible personal property subject to the 
three percent state and two percent local sales tax 
are permitted to divide their gross receipts from 
sales by such vending machines by 105 percent 
to arrive at taxable sales when they prepare their 
monthly sales and use tax reports and remit- 
tances. 

History Note: Statutory Authority G.S. 
105-164.4; 105-262; 
Eff. February 1, 1976; 
Amended Eff August I, 1988; July 5, 1980. 

SECTION .4200 - SALES TO THE UNITED 

STATES GOVERNMENT OR AGENCIES 

THEREOF 

.4201 IN GENERAU 

(a) Sales made directly to the United States 
Government, or any agency thereof, are not 
subject to the sales or use tax. In order to be a 
sale to the United States Government, the gov- 
ernment or agency involved must make the pur- 
chase of the property, obtain title to the property 
before or at the time it is delivered, and pay di- 
rectly to the vendor the purchase price of such 
property or use a government bankcard to pay 
the vendor the purchase price of such property. 

(b) Nontaxable federal agencies include the 
United States Postal Service, Departments of 
Defense, Army, Navy and Air Force, United 
States hospitals, federal reserve banks, federal 
land banks, federal housing projects, federal 
housing authorities, or any other department or 
departments of the federal government whose 
activities are directly under federal control and 
whose purchases are paid for from the federal 
treasury. 

(c) Sales made to Army, Navy and Air Force 
Activities Funds, post exchanges, officers' mess 
funds, noncommissioned officers funds and other 
voluntary unincorporated organizations of Army, 
Navy, Marine Corps, Air Force, or Coast Guard 
personnel authorized by regulations issued by the 
Departments of Defense, Army, Navy or Air 
Force are likewise exempt from sales and use tax. 

History Note: Statutory Authority G.S. 
105-164.13; 105-262; 
Eff February 1, 1976; 
Amended Eff August I, 1988. 



NORTH CAROLINA REGISTER 



390 



FINAL RULES 



.4202 GOVERNMENTAL PURCHASING 
REQUISITIONS 

Some agencies, instrumentalities, organizations, 
or activities of the United States Government 
listed in 17 NCAC 7B .4201 will be using pur- 
chase requisitions or affidavits in connection with 
their purchases and other such agencies, instru- 
mentalities, organizations, or activities of the 
United States Government will be using a United 
States Government Bankcard in connection with 
their purchases. A vendor making sales directly 
to the United States Government, or any agency 
or instrumentality thereof, that issues purchase 
requisitions or affidavits must obtain and keep 
copies of such purchase requisitions or affidavits 
signed by the purchasing officer stating that such 
sales are being made directly to the United States 
Government or an agency or instrumentality 
thereof. A vendor making sales directly to the 
United States Government, or any agency or in- 
strumentality thereof, using a United States Go- 
vernment Bankcard must obtain and keep a copy 
of the bankcard receipt showing that such sales 
are being made directly to the United States Go- 
vernment, or an agency or instrumentality ther- 
eof. Copies of such bankcard receipts and 
purchase requisitions or affidavits must be re- 
tained by the vendor in his tiles for three years 
following the date of sale and must be available 
for inspection by the Secretary of Revenue or her 
agents upon request. 

History Note: Statutory Authority G.S. 
105-164.13; 105-262;' 
Eff. February 1, 19^6; 
Amended Eff. August 1, 1988. 

SECTION .4500 - LAUNDRIES: DRV CLEANING 

PLANTS: LAUNDERETTES: LINEN RENTALS: 

AND SOLICITORS FOR SUCH BLSINESSES 

.4501 RECEIPTS OF LAUNDRIES: ETC. 

(a) The gross receipts derived from the follow- 
ing are subject to the three percent sales or use 
tax: 

(1) services rendered by pressing clubs, clean- 
ing plants, hat blocking establishments, 
dry cleaning plants, laundries, including 
wet or damp wash laundries and busi- 
nesses known as launderettes and launde- 
ralls, and all similar type businesses; 

(2) the rental of clean linen, towels, wearing 
apparel and similar items; 

(3) soliciting cleaning, pressing, hat blocking 
and laundry; 

(4) rug cleaning services performed by persons 
operating rug cleaning plants or per- 
formed by any of the businesses named in 
this Rule when the rug cleaning service is 
performed at the plant; Receipts from rug 



cleaning services performed at the cus- 
tomer's location by any of the businesses 
included in this Rule are not subject to 
sales and use tax. 
Effective July 1, 1988, receipts derived from coin 
or token-operated washing machines, extractors 
and dryers are exempt from sales or use taxes. 
Retail sales of detergents, bleaches and other 
taxable items of tangible personal property 
through vending machines continue to be subject 
to the applicable sales or use tax. 

(b) Charges by the businesses named in (a) of 
this Rule for alterations or storage of garments 
are not a part of the gross receipts subject to tax 
when such charges are separately stated on their 
invoices and in their records. When such charges 
are not separately stated, the total charge is sub- 
ject to the three percent gross receipts tax. Sales 
of thread, buttons, zippers, pockets, and other 
similar tangible personal property to such busi- 
nesses for use or consumption in making repairs 
and alterations to garments being laundered, cle- 
aned or pressed are subject to the three percent 
rate of tax. 

(c) When in addition to the services named in 
Paragraph (a) of this Rule, the herein-named 
businesses make retail sales of tangible personal 
property for which a separate charge is made, 
such sales are subject to the three percent sales 
tax. Any charge for labor or services rendered in 
applying or installing such property are not sub- 
ject to tax provided such charges are segregated 
from the charge for the tangible personal prop- 
erty sold on the invoice given to the customer at 
the time of the sale and in the vendor's records; 
otherwise, the total amount is subject to tax. 

(d) Receipts derived through persons engaged 
in soliciting laundering or cleaning business are 
not subject to the tax if such solicitor is a regis- 
tered retailer and he pays to the department the 
three percent tax on the total gross receipts de- 
rived from the business solicited. 

History Note: Statutory Authority G.S. 
105-164.4; 105-262; 
Eff. February 1, 1976; 
Amended Eff August 1, 19SS. 

.4512 EXCLUSION OF TAX FROM RECEIPTS 

History Note: Statutory Authority G.S. 
105-164.4; 105-262; 
Eff. February 1, 1976; 
Amended Eff. July 5, 1980; 
Repealed Eff. August 1, 1988. 

SECTION .5400 - FORMS USED FOR SALES 
AND USE TAX PURPOSES 



391 



NORTH CAROLINA REGISTER 



FINAL RULES 



.5425 NONRESIDENT MERCHANTS 
REGIS! RATION APPLICATION 

EORM: E-572 



SECTION .0100 - LOCAL GOVERNMENT 
SALES AND USE TAXES 



History Note: Statutory Authority G.S. 
105-164.15; 105-262; 
Eff. February 1, 1976; 
Repealed Eff August 1, 1988. 

.5426 NONRESIDENT MERCHANTS 
REGISTRATION CERTIFICATE 
FORM: E-573 

History Note: Statutory Authority G.S. 
105-164.15; 105-262; 
Eff. February 1, 1976; 
Repealed Eff August 1, 1988. 

.5427 NONRESIDENT MERCHANTS 
CERTIFICATE OF RESALE 
FORM: E-574 

History Note: Statutory Authority G.S. 
105-164.15; 105-262; 
Eff. February I, 1976; 
Repealed Eff August 1, 1988. 

.5433 RES/NONRES RETAIL/WHLSLE 

MERCH CERT/RESALE FORM: E-590 

The Resident and Nonresident Retail or 
Wholesale Merchant's Certificate of Resale 
Form, E-590, is to be completed by resident or 
nonresident registered retail and wholesale mer- 
chants and furnished to their suppliers when 
purchasing tangible personal property for the 
purpose of resale. 

History Note: Statutory Authority G.S. 
105-164.15; 105-/64.28; 105-262: 
Eff. February 1, 1976; 
Amended Eff August 1, 1988. 

.5443 SALES AND USE TAX CHART: 
E-502C: FIVE PERCENT 

The sales and use tax chart, E-502C, shows the 
amount of five percent sales or use tax to be 
collected on retail sales indicated. The form is 
sent to taxpayers for use as a guide in determin- 
ing the five percent tax to be charged on sales. 



History Note: Statutory . 
105-164.15; 105-262; 
Eff. January 3, 1984; 
Amended Eff. August I , 



iuthority G.S. 



1988. 



SUBCHAPTER 7C - LOCAL GOVERNMENT: 
MECKLENBURG COUNTY: SUPPLEMENTAL 

LOCAL GOVERNMENT AND ADDITIONAL 

SUPPLEMENT LOCAL GOVERNMENT SALES 

AND USE TAX ACTS 



.0103 SALES TAX IMPOSED 

(a) Every retailer whose place of business is 
located in a county which has approved the local 
sales and use tax is required to collect and remit 
to the North Carolina Secretary of Revenue the 
county sales tax at the rate of two percent on: 

(1) the sales price of those articles of tangible 
personal property now subject to the three 
percent sales tax imposed by the state un- 
der G.S. 105-164.4(1); but not on sales of 
electricity, piped natural gas or intrastate 
telephone service taxed under G.S. 
105-164.4(4a); 

(2) the gross receipts derived from the lease 
or rental of tangible personal property 
where the lease or rental of such property 
is an established business now subject to 
the three percent sales tax imposed bv the 
state under G.S. 105-164.4(2); 

(3) the gross receipts derived from the rental 
of any room or lodging furnished by any 
hotel, motel, inn, tourist camp or other 
similar accommodations now subject to 
the three percent sales tax imposed by the 
state under G.S. 105-164.4(3); 

(4) the gross receipts derived from services 
rendered by laundries, dry cleaners, clean- 
ing plants and similar type businesses now 
subject to the three percent sales tax im- 
posed by the state under G.S. 
105-164.4(4). 

(b) All retailers making sales from a place of 
business located within a taxing county must 
collect and remit the two percent local sales tax 
for the county in which the retailer's place of 
business is located. For sales tax purposes, the 
situs of a sale is the retailer's place of business 
located within a taxing county where the vendor 
becomes contractually obligated to make the sale. 
The term "place of business located within a 
taxing county" shall mean stores, warehouses, 
sales outlets, inventories, and other places within 
a taxing county where tangible personal property 
is maintained for sale, lease, or rental at retail, 
and it shall include inventories of goods carried 
on foot or in vehicles for sale to customers in a 
taxing county. It shall also include laundries, dry 
cleaning plants, or similar businesses and hotels, 
motels, or similar facilities in a taxing county. 
Taxable tangible personal property sold and de- 
livered from a business location in a taxing 
county to the buyer or his agent at a point within 
this State, if such agent is not a common carrier, 
is subject to the tax for the county in which the 
retailer's place of business is located notwith- 



NOR TH CA ROLINA R EG IS TER 



392 



FINAL RULES 



standing that the purchaser may subsequently 
transport the property outside this State for use. 

History Sole: Statutory Authority G.S. 
105-262; 105-467; 
Eff. February 1, 1976; 
Amended Eff. August 1, 1988; August 1, 1986. 

.0104 USE TAX IMPOSED 

(a) A local use tax is levied at the rate of two 
percent of the cost price of each item or article 
of tangible personal property which is used, con- 
sumed or stored for use or consumption in a 
taxing county and such use tax may be imposed 
only on those items of tangible personal property 
upon which the state now levies a three percent 
use tax under G.S. 105-164.6. Every retailer en- 
gaged in business in this state and in the taxing 
county and required to collect the use tax levied 
by G.S. 105-164.6 shall also collect the one per- 
cent local use tax and remit same to the North 
Carolina Secretary of Revenue when such prop- 
erty is to be used, consumed or stored in the 
taxing county. The use tax shall be levied against 
the purchaser and his liability for such tax shall 
be extinguished only upon his payment of the tax 
to the retailer, where the retailer has charged the 
tax, or to the Secretary of Revenue where the 
retailer has not charged the tax. Every person 
who purchases any tangible personal property for 
storage, use or consumption in a taxing county 
from vendors located outside the purchaser's 
county who do not charge the tax must report 
and remit the applicable use tax to the Secretary 
of Revenue where she is authorized to collect and 
administer the tax. 

(b) Where a local sales or use tax has been paid 
with respect to such tangible personal property 
by the purchaser thereof, either in another taxing 
county within this State or in a taxing jurisdiction 
outside this State where the purpose of the tax is 
similar in purpose and intent to the local sales 
or use tax which is imposed within this State, 
said tax may be credited against the local use tax 
due. If the amount of local sales or use tax paid 
in another taxing county or jurisdiction is less 
than the amount of tax due the taxing county, 
the purchaser shall pay to the Secretary of Re- 
venue an amount equal to the difference between 
the amounts so paid in the other taxing county 
or jurisdiction and the amount due in the taxing 
county. No credit shall be allowed for sales and 
use taxes paid in a taxing jurisdiction outside this 
State if that taxing jurisdiction does not allow a 
credit for local government sales taxes paid in this 
State. The local use tax will not be subject to 
credit for payment of any state sales or use tax 
not imposed for the benefit and use of counties 
and municipalities. 



History Note: Statutory Authority G.S. 
105-262; 105-468; 
Eff. February 1. 1976; 
Amended Eff. August 1, 1988; February 8, 1981. 

.0105 SALES CONTRACTS 

Generally, a sale is not consummated until de- 
livery is made to the purchaser; therefore, in the 
absence of unusual circumstances, the local sales 
and use taxes will be due on all taxable sales or 
purchases of property, including building materi- 
als, which are delivered on or after the effective 
date of the levy irrespective of the date the order 
is placed. The local sales and use taxes shall be 
applicable with respect to sales to contractors of 
any building materials, supplies or equipment 
which will be annexed to or become a part of a 
building or structure being constructed under a 
lump sum or unit price contract awarded before 
the effective date of the levy or awarded pursuant 
to a bid made before the effective date of the levy. 

History Note: Statutory Authority G.S. 
105-262; 105-467; 1 05-468.1; 
Eff. February 1. 1976; 
Amended Eff. August 1, 1988. 

.0108 RECORDS TO BE KEPT BY TAXPAYER 

History Note: Statutory Authority G.S. 
105-262; 105-474; 
Eff. February 1. 1976; 
Repealed Eff August 1, 1988. 

SECTION .0200 - MECKLENBURG COUNTY 
SALES AND USE TAXES 

.0201 COLLECTION AND ADMINISTRATION 
OF THE TAX 

The Mecklenburg County Sales and Use Tax 
Act (Chapter 1096), the Supplemental Local 
Government Sales and Use Tax Act (Article 40), 
and the Additional Supplemental Local Govern- 
ment Sales and Use Tax Act (Article 42), here- 
inafter collectively referred to as the Acts, levy the 
two percent county sales and use tax in Meck- 
lenburg County. The North Carolina Secretary 
of Revenue shall collect and shall be charged 
with the duty of administering the Acts. The 
secretary is empowered to promulgate such rules 
and regulations as are necessary and proper for 
the implementation of the Acts. In construing 
and interpreting the provisions of the Acts, the 
Secretary of Revenue may uniformly apply the 
administrative interpretations which have here- 
tofore been made by the Department of Revenue 
as to the State Sales and Use Tax Act. The de- 
finitions set forth in G.S. 105-164.3 and all other 
provisions of Article 5 apply to the Acts insofar 



393 



NORTH CAROLINA REGISTER 



FINAL RULES 



as such provisions are not inconsistent with the 
provisions of the Acts. 

History Note: Statutory Authority G.S. 
105-262; Session Laws, Chapter 1096, 
Section 6 (1967); 
Eff. February 1, 1976; 
Amended Eff. August 1, 1988. 

.0202 SALES TAX IMPOSED 

(a) Every' retailer with a place of business lo- 
cated in Mecklenburg County is required to col- 
lect and remit to the North Carolina Secretary 
of Revenue the applicable two percent sales tax 
for Mecklenburg County. The term "place of 
business located in Mecklenburg County" in- 
cludes, but is not limited to retail stores, ware- 
houses, sales outlets, inventories and other 
locations in Mecklenburg County from which 
retail sales and deliveries are made to purchasers 
within this State and it shall include the main- 
taining in Mecklenburg County, either perma- 
nently or temporarily, of tangible personal 
property for the purpose of lease or rental and 
the selling and delivering of tangible personal 
property on foot or from vehicles in Mecklen- 
burg County. It shall also include laundries, dry 
cleaning plants or similar businesses and hotels, 
motels and similar facilities in Mecklenburg 
County. The Acts also impose a sales and use 
tax in Mecklenburg County at the rate of two 
percent on: 

( 1) the sales price of those articles of tangible 
personal property now subject to the three 
percent sales tax imposed by the state un- 
der G.S. 105-164.4(1) but not on sales of 
electricity, piped natural gas or intrastate 
telephone service taxed under G.S. 
105-164.4(4a); 

(2) the gross receipts derived from the lease 
or rental of tangible personal property on 
which the state now imposes a three per- 
cent sales tax under G.S. 105-164.4(2); 

(3) the gross receipts derived from the rental 
of any room or lodging furnished by any 
hotel, motel, inn, tourist camp or similar 
public accommodations now subject to 
the three percent sales tax imposed by the 
state under G.S. 105-164.4(3); and 

(4) the gross receipts derived from services 
rendered by laundries, dry cleaners, clean- 
ing plants and similar type businesses now 
subject to the three percent sales tax im- 
posed by the state under G.S. 
105-164.4(4). 

(b) Taxable tangible personal property sold and 
delivered from a business location in Mecklen- 
burg County to the buyer or his agent at a point 
within this State, if such agent is not a common 



carrier, for delivery to the purchaser at a point 
outside this State is subject to the tax in Meck- 
lenburg County notwithstanding that the pur- 
chaser may subsequently transport, or employ 
someone else to transport, the property outside 
this State for use. For sales tax purposes, the 
situs of a sale is the retailer's place of business 
located within a taxing county where the vendor 
becomes contractually obligated to make the sale. 

History Note: Statutory Authority G.S. 
105-262; Session Laws, Chapter 1096, 
Section 4 (1967); 
Eff. February 1, 1976; 
Amended Eff August 1, 1988; August 1, 1986. 

.0203 USE TAX IMPOSED 

(a) A county use tax is levied at the rate of two 
percent of the cost price of each item or article 
of tangible personal property which is used, con- 
sumed or stored for use or consumption in 
Mecklenburg County and such use tax may be 
imposed only on those items of tangible personal 
property upon which the state now levies a three 
percent use tax under G.S. 105-164.6. Every 
retailer engaged in business in this State and in 
Mecklenburg County and required to collect the 
use tax levied by G.S. 105-164.6 shall also collect 
the two percent county use tax and remit same 
to the North Carolina Secretary of Revenue 
when such property is to be used, consumed or 
stored in Mecklenburg County. The use tax 
shall be levied against the purchaser and his li- 
ability for such tax shall be extinguished only 
upon his payment of the tax to the retailer, where 
the retailer has charged the tax, or to the Secre- 
tary of Revenue where the retailer has not 
charged the tax. Every person who purchases 
any tangible personal property for storage, use 
or consumption in Mecklenburg County from 
vendors located outside the purchaser's county 
who do not charge the tax must report and remit 
the applicable use tax to the Secretary of Re- 
venue. 

(b) Where a county sales or use tax has been 
paid with respect to such tangible personal pro- 
perty by the purchaser thereof, either in another 
taxing county within this State or in a taxing ju- 
risdiction outside this State where the purpose 
of the tax is similar in purpose and intent to the 
tax which is imposed in Mecklenburg County, 
said tax may be credited against the county use 
tax due. If the amount of county sales or use tax 
paid in another taxing county or jurisdiction is 
less than the amount of tax due Mecklenburg 
County, the purchaser shall pay to the Secretary 
of Revenue an amount equal to the difference 
between the amounts so paid in the other taxing 
county or jurisdiction and the amount due in 



NORTH CAROLINA REGISTER 



394 



FINAL RULES 



Mecklenburg County. No credit shall be allowed 
for sales and use taxes paid in a taxing jurisdic- 
tion outside this State if that taxing jurisdiction 
does not allow a credit for local sales taxes paid 
in this State. The county use tax will not be 
subject to credit for payment of any state sales 
or use tax not imposed for the benefit and use 
of counties and municipalities. 

History Note: Statutory Authority G.S. 
105-262; Session Laws, Chapter 1096, 
Section 5 (1967); 
Eff. February 1, 1976; 
Amended Eff. August 1, 198S; February 8, 1981. 

.0204 MAXIMUM TAX 

History Note Statutory Authority G.S. 
105-262; S.L. (1967), Ch. 1096, s. 4 and 5; 



Eff. February 1, 1976; 

Amended Eff March I, 1987; February 1, 1987; 

January 1, 1982; 

Repealed Eff August 1, 1988. 

.0206 EXEMPTIONS AND EXCLUSIONS 

History Note: Statutory Authority G.S. 
105-262; S.L. 1967, Ch. 1096, s. 10; 
Eff. February 1, 1976; 
Amended Eff January 1, 1982; 
Repealed Eff August 1, 1988. 

.0207 RECORDS TO BE KEPT BY TAXPAYER 

History Note; Statutory Authority G.S. 
105-262; S.L. 196 7 , Ch. 1096, s. 10; 
Eff. February 1, 1976; 
Repealed Eff August 1, 1988. 



395 



NORTH CAROLINA REGISTER 



NC AC INDEX 



TITLK/MA.IOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT 



1 

2 

3 

4 

5 

6 

7 

8 

9 
10 
11 
12 
13 
14A 
15 
16 
17 
18 
19A 
20 
*21 
22 
23 
24 
25 
26 



Administration, Department of 

Agriculture, Department of 

Auditor, Department of State 

Commerce, Department of 

Corrections, Department of 

Council of State 

Cultural Resources, Department of 

Elections, State Board of 

Governor, Office of the 

Human Resources, Department of 

Insurance, Department of 

Justice, Department of 

Labor, Department of 

Crime Control and Public Safety, Department of 

Natural Resources and Community Development, Department of 

Education, Department of 

Revenue, Department of 

Secretary of State, Department of 

Transportation, Department of 

Treasurer, Department of State 

Occupational Licensing Boards 

Administrative Procedures 

Community Colleges, Department of 

Housing Finance Agency 

State Personnel, Office of 

Administrative Hearings, Office of 



NOTE: Title 21 contains the chapters of the various occupational licensing boards. 
CHAPTER LICENSLNG BOARDS 



2 
4 
6 
8 

10 
12 
14 
16 
18 
20 
21 
22 
26 
28 
31 
32 
33 
34 
36 
37 
38 
40 
42 



Architecture, Board of 

Auctioneers, Commission for 

Barber Examiners, Board of 

Certified Public Accountant Examiners, Board of 

Chiropractic Examiners, Board of 

Contractors, Licensing Board for 

Cosmetic Art Examiners, Board of 

Dental Examiners, Board of 

Electrical Contractors, Board of Examiners of 

Foresters, Board of Registration for 

Geologists, Board of 

Hearing Aid Dealers and Fitters Board 

Landscape Architects, Licensing Board of 

Landscape Contractors, Registration Board of 

Martial & Family Therapy Certification Board 

Medical Examiners, Board of 

Midwifery Joint Committee 

Mortuary Science, Board of 

Nursing, Board of 

Nursing Home Administrators, Board of 

Occupational Therapists, Board of 

Opticians, Board of 

Optometry, Board of Examiners in 



NORTH CAROLINA REGISTER 



396 



NC AC INDEX 



44 Osteopathic Examination and Registration, Board of 

46 Pharmacy, Board of 

48 Physical Therapy, Examining Committee of 

50 Plumbing and Heating Contractors, Board of 

52 Podiatry Examiners, Board of 

53 Practicing Counselors, Board of 

54 Practicing Psychologists, Board of 

56 Professional Engineers and Land Surveyors, Board of 

58 Real Estate Commission 

60 Refrigeration Examiners, Board of 

62 Sanitarian Examiners, Board of 

63 Social Work, Certification Board for 

64 Speech and Language Pathologists and 

Audiologists, Board of Examiners of 

66 Veterinary Medical Board 



397 NORTH CAROLINA REGISTER 



CUMULA TIVE INDEX 



CUMULA TIVE INDEX 

(April 1988 - March 1989) 



1988 - 1989 

Pages Issue 

1 - 25 1 - April 

26 - 108 2 - April 

109 - 118 3 - May 

119 - 145 4 - May 

146 - 184 5 - June 

185 - 266 6 - June 

267 - 294 7 - July 

295 - 347 8 - July 

348 - 400 9 - August 



AO - Administrative Order 

AG - Attorney General's Opinions 

C - Correction 

E - Errata 

EO - Executive Order 

FDL - Final Decision Letters 

FR - Final Rule 

GS - General Statute 

JO - Judicial Orders or Decision 

LRA - List of Rules Affected 

M - Miscellaneous 

NP - Notice of Petitions 

PR - Proposed Rule 

SO - Statements of Organization 

TR - Temporary Rule 



ADMrsISTRATION 

Auxiliary Services, 270 PR 

Departmental Rules, 270 PR 

State Construction, 187 PR 

Youth Advocacy and Involvement Office, 148 PR 

ADMINISTRATIVE HEARINGS 

Hearings Division, 76 PR 

ADMINISTRATIVE ORDER 

Administrative Order, 369 AO 

AGRICULTURE 

Food and Drug Protection Division, 271 PR 
Structural Pest Control Committee, 296 PR 



NORTH CAROLINA REGISTER 



398 



CL'MULA THE INDEX 



COMMERCE 

.Alcoholic Beverage Control Commission, 276 PR 
Milk Commission, 120 PR, 190 PR 

COMMUNITY COLLEGES 

Community Colleges, 287 PR 

CRIME CONTROL AND PUBLIC SAFETY 

Alcohol Law Enforcement, -P PR 

ELECTION'S 

State Board of Elections, 120 PR 

EXECUTIVE ORDLRS 

Executive Orders 68- 71. 1 EO 

72.119 EO 

73, 146 EO 

FINAL DECISION LETTERS 

Voting Rights Act. 5 EDL, 26 EDL, 185 EDL, 267 FDL, 295 FDL, 370 FDL 

GENERAL STATUTES 

Chapter "A. 348 GS 
Chapter 143B. 350 GS 
Chapter 150B, 352 GS 

HUMAN RESOURCES 

Division of Aging. 229 PR 

Drug Commission. 113 FR 

Health Services, 7 PR. 220 PR. 206 PR 

Medical Assistance. 7 PR. 30 PR. 109 PR, 121 PR. 237 PR, 303 PR 

Office of the Secretary, 31 PR 

Social Services Commission, 2 n PR 

Vocational Rehabilitation Services. 371 PR 

INDEPENDENT AGENCIES 

Housing Finance, 21 PR. 134 PR, 255 PR 

INSURANCE 

Agent Senices, 238 PR 

Eire and Casualty, 32 PR 

Fire and Rescue Senices Division, 122 PR, 149 PR 

JUSTICE 

Criminal Justice Education and Training Standards, 304 PR 
Private Protective Senices, 303 PR 

LICENSLNG BOARDS 

Cosmetic Art Examiners, 283 PR 

CPA, 73 PR 

Examiners of Electrical Contractors. 151 PR 

Hearing Aid Dealers. "7 FR 

Nursing. 376 PR 

Podiatn" Examiners, 377 PR 



399 NORTH CAROLINA REGISTER 



CUMULA TIVE INDEX 



LIST OF RULES AFFECTED 

April 1, 1988, 102 LRA 
May 1, 1988, 137 LRA 
June 1, 1988, 260 LRA 
July 1, 1988, 335 LRA 

NATURAL RESOURCES AND COMMUNITY DEVELOPMENT 

Coastal Management, 11 PR, 67 PR, 254 PR, 281 PR 

Community Assistance, 69 PR 

Environmental Management, 241 PR, 278 PR 

Forest Resources, 68 PR 

Marine Fisheries, 62 PR 

Soil and Water Conservation, 1 1 1 PR 

Wildlife Resources and Water Safety, 1 1 1 PR, 282 PR 

REVENUE 

License and Excise Tax, 1 13 FR 
Motor Fuels Tax, 258 FR 
Sales and Use Taxes, 386 FR 

SECRETARY OF STATE 

Securities Division, 125 PR 

STATE PERSONNEL 

State Personnel Commission, 135 PR, 333 PR 

STATE TREASURER 

Escheats and Abandoned Property, 328 PR 
Local Government Commission, 18 PR 

TRANSPORTATION 

Division of Motor Vehicles, 172 FR, 258 FR 



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Return to Office of Administrative Hearings - fold at line, staple at bottom and affix postage.) 



CHANGE OF ADDRESS: 



1 . Present Address 



NAME 



ADDRESS 



CITY 



STATE 



ZIP 



2. New Address 



NAME 



ADDRESS 



CITY 



STATE 



ZIP 



Office of Administrative Hearings 



P. O. Drawer 11666 
Raleigh, North Carolina 27604 



FIRST CLASS 















, 



612 
UNIV. OF NORTH CAROLINA 
AT CHAPEL HILL LIB. 
UAN HECKE-HETTACH BLDG. 064 A 
CHAPEL HILL 



NC 27514